FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoser v Georges (No 3) [2024] FedCFamC2G 958
File number(s): MLG 2313 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 26 September 2024 Catchwords: INTELLECTUAL PROPERTY – Costs – on 15 March 2024 the Court ordered that the applicant pay the costs of the respondents but reserved liberty to the respondents to apply for their costs to be assessed according to Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) or on some other basis – the respondents applied for costs to be assessed according to Part 1 of Schedule 2 to the GFL Rules – whether counsel’s fees are recoverable under item 11 of Part 1 of Schedule 2 to the GFL Rules or may only be recovered under item 10 as an advocacy loading – counsel’s fees are recoverable only as an advocacy loading – costs of the respondents assessed on that basis. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Sch 2 (Pt 1), rr 22.09, 22.15
Federal Circuit Court Rules 2001 (Cth)
Federal Court Rules 2011 (Cth), Sch 3
Cases cited: AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256
Colan Products Pty Ltd v Luxon Pty Ltd (No.2) [2002] FMCA 90
Hoser v Georges [2023] FedCFamC2G 550
Division: General Number of paragraphs: 28 Date of last submission/s: 10 May 2024 Date of hearing: Decided on the papers Place: Sydney The Applicant: Appeared in person Solicitor for the First and Seventh Respondents: Ms I Kraus of Meridian Lawyers Solicitor for the Second, Third, Fourth, Fifth and Eighth Respondents: Ms N Wilson of CIE Legal Solicitor for the Sixth Respondent: Mr M Swinn of King & Wood Mallesons ORDERS
MLG 2313 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAYMOND HOSER
ApplicantAND: ARTHUR GEORGES
First RespondentPETER PAUL VAN DIJK
Second RespondentANDERS G. J. RHODIN (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
26 SEPTEMBER 2024
THE COURT CERTIFIES THAT:
1.It was reasonable for the first and seventh respondents to engage counsel in relation to the applications that are the subject of the orders made on 27 June 2023 and 15 March 2024.
THE COURT ORDERS THAT:
2.The costs of the respondents which the applicant on 15 March 2024 was ordered to pay:
(a)in relation to the first and seventh respondents, be set in the amount…
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- AGLC
- Hoser v Georges (No 3) [2024] FedCFamC2G 958
- Case
- [2024] FedCFamC2G 958
- Decision Date
CaseChat Overview and Summary
The court examined the provisions of Schedule 2, particularly items 9, 10, and 11, which detail the daily hearing fee, advocacy loading, and disbursements respectively. The first and seventh respondents argued that counsel’s fees could be recovered as a disbursement. However, the court noted that previous decisions of the court had consistently held that counsel’s fees are not recoverable as a disbursement but may only be recovered as an advocacy loading. The court referred to the judgment in Murphie v Vita Domus Pty Ltd (No.2) where Judge Barnes held that counsel’s fees should be included as part of the advocacy loading rather than as a disbursement. Consequently, the court determined that counsel’s fees are recoverable only as an advocacy loading.
Based on this reasoning, the court assessed the respondents' costs on the basis that counsel’s fees should be included as an advocacy loading. The court set the costs for the first and seventh respondents at $14,433, for the second, third, fourth, fifth, and eighth respondents at $15,829.74, and for the sixth respondent at $12,762.39. The form of the order is subject to the entry in the Court’s records.
Orders
Orders of the court
MLG 2313 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
RAYMOND HOSER
Applicant
AND:
ARTHUR GEORGES
First Respondent
PETER PAUL VAN DIJK
Second Respondent
ANDERS G. J. RHODIN (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
26 SEPTEMBER 2024
THE COURT CERTIFIES THAT:
1. It was reasonable for the first and seventh respondents to engage counsel in relation to the applications that are the subject of the orders made on 27 June 2023 and 15 March 2024.
THE COURT ORDERS THAT:
2. The costs of the respondents which the applicant on 15 March 2024 was ordered to pay:
(a) in relation to the first and seventh respondents, be set in the amount of $14,433;
(b) in relation to the second, third, fourth, fifth, and eighth respondents, be set in the amount of $15,829.74; and
(c) in relation to the sixth respondent, be set in the amount of $12,762.39.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
1.
On 15 March 2024, based on reasons for judgment I published on that day (earlier reasons),[1] I ordered that the proceeding be dismissed, and that the applicant, Mr Hoser, pay the respondents’ costs. I also ordered that the respondents have liberty to apply within 35 days for an order that their costs be set in accordance with Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) or, in the alternative, for an order pursuant to r 22.09 of the GFL Rules that their costs be set or assessed otherwise than in accordance with Schedule 2 to the GFL Rules.
2.
The reasons for my granting the respondents’ liberty to apply are to be found in the following passage from the earlier reasons:[2]
The respondents also apply that I assess their costs. The first and seventh respondents, and the second, third, fourth fifth, sixth, and eighth respondents have provided separate schedules of costs. The costs appear to have been purportedly assessed in accordance with Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). I say “purportedly” because the schedule in relation to the first and seventh respondents’ [costs] claims as a disbursement fees paid to counsel ($23,292.50 and $24,736.25) which exceed the amounts allowed by Schedule 2, being the amount specified in r 22.15 of the GFL Rules, which provides:
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 Part 1 of Schedule 2.
Further, there appears to be double counting to the extent that all respondents claim hearing fees in circumstances where one counsel represented all respondents.
I therefore do not propose to set costs in the amount stated in the schedules the respondents have provided. I will, however, grant the respondents liberty to apply within 35 days after I publish these reasons for an order that I set the amount of the respondents’ costs in accordance with Schedule 2 to the GFL Rules or, in the alternative, for an order that the respondents’ costs be assessed or set in a manner otherwise than in accordance with Schedule 2.
3.
The respondents exercised the liberty to apply on 19 April 2024 by filing three sets of written submissions, one by the first and seventh respondents, one by the sixth respondent, and one by the second, third, fourth, fifth, and eighth respondents. Each set of submissions is supported by a schedule which identifies the amounts to which the respective sets of respondents submit they are entitled under Part 1 of Schedule 2 to the GFL Rules.[3] The first and seventh respondents also filed an affidavit by their lawyer annexing a copy of invoices counsel for the first and seventh respondents had issued for the work counsel performed.
4.
At my direction, on 2 May 2024 my Associate sent to the parties an email in which the parties were informed that the documents the respondents had filed had come to my attention, and that I inquired whether Mr Hoser proposed to file any material in response to the material the respondents filed. The email also stated that unless by 10 May 2024 the parties informed me that they required an oral hearing, I would proceed to determine the question of costs on the papers.
5.
On 2 May 2024 Mr Hoser sent an email to my Associate’s inbox in which he stated that, in view of his having filed an appeal against my orders of 15 March 2024, the issue of costs should not be dealt with until after the appeal is heard. On 10 May 2024 Mr Hoser filed written submissions in which he repeated the same submission, but in which he also made submissions in response to the respondents’ written submissions.
6.
That Mr Hoser has filed an appeal against the orders I made on 15 March 2024 is no reason for not proceeding to assess costs. Accordingly, in these reasons for judgment I consider whether I should assess the respondents’ costs in the amounts they claim or for some lesser amounts.
PROVISIONS
7.
In CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) I set out and discussed the provisions that regulate this Court’s power to award costs under the Federal Circuit Court of Australia Act 1999 (Cth),[4] being provisions that have been reproduced in the Federal Circuit and Family Court of Australia Act 2021 (Cth). I also referred to the rule under the Federal Circuit Court Rules 2001 (Cth) that regulated the assessment of costs once the Court has ordered that a party pay them.[5] That rule is repeated in r 22.09 of the GFL Rules, which provides:
Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:
(a) costs in accordance with Schedule 2; and
(b) disbursements properly incurred.
8.
Adapting what I said in CIQ17,[6] Part 1 of Schedule 2 to the GFL Rules identifies a relatively small number of, but in most cases broadly defined, activities or events that occur in a proceeding, and assigns an amount to each activity or event. The assessment of costs in accordance with Part 1 of Schedule 2 to the GFL Rules, therefore, consists of identifying the events that have actually occurred in the proceeding that fall within the scope of the order for costs and which also fall within the terms of the activities or events specified in Schedule 2 to the GFL Rules, assigning the appropriate amount to each activity or event, identifying all disbursements and the amounts of those disbursements, and adding all these amounts.
9.
Relevant to these reasons are items 9, 10, and 11 of Part 1 of Schedule 2:
9
Daily hearing fee
(a) for a short mention—$342.19; or
(b) for a half day hearing—$1,255.75; or
(c) for a full day hearing—$2,512.56
10
Advocacy loading
50% of the daily hearing fee mentioned in item 9 that applies to the hearing
11
Disbursements—Court fees and other fees and payments to the extent that they have been reasonably incurred
The amount of the fees and payments
10.
The first and seventh respondents submit that counsel’s fees may be recovered as a “disbursement” under item 11. They rely on the judgment of Judge Given in AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) where her Honour said:[7]
Counsel’s fees are a disbursement and ought to be excluded from the calculation of party/party costs. The proper calculation for each of the aforesaid amounts requires that the 25 per cent reduction be first applied to the solicitor’s professional fees, and that the Counsel’s fees be applied afterwards to that figure.
11.
It appears her Honour was not taken to a consistent line of decisions of this Court that have held that, under the predecessor of Part 1 of Schedule 2 to the GFL Rules, counsel’s fees are not recoverable as a disbursement, but may only be recovered as an “advocacy loading”. The position was stated by Judge Barnes in Murphie v Vita Domus Pty Ltd (No.2).[8] In that case, the successful applicant claimed a daily hearing fee calculated on the basis of a half-day hearing, an advocacy loading, and counsel’s fees, charged as a disbursement. Her Honour found that the “claim that counsel’s fees should be included as a disbursement is inconsistent with the approach taken by this court to the proper construction of the FCC Rules”.[9] Her Honour continued:[10]
In Colan Products Pty Ltd v Luxon Pty Ltd (No.2) [2002] FMCA 90, Raphael FM considered circumstances in which a party had claimed counsel’s fees as a disbursement in addition to a daily hearing fee for an instructing solicitor. His Honour stated at [7] in relation to Part 1 of Schedule 1 to the
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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