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Keen v Telstra Corporation Ltd (No 2)

Keen v Telstra Corporation Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA
Keen v Telstra Corporation Limited (No 2) [2006] FCA 930
COSTS – gross sum specified in order – approach to quantification of gross sum – Federal Court Rules O 62 r 4(2)(c)
Federal Court Rules O 62 r 4(2)(c)
Beach Petroleum NL v Johnson (No 2) (1995) FCR 119 applied
LA-RAINE LESLEY KEEN v TELSTRA CORPORATION LIMITED
NSD 2528 OF 2005
RARES J
4 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2528 OF 2005

BETWEEN:

LA-RAINE KEEN
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
RESPONDENT

JUDGE:

RARES J

DATE OF ORDER:

4 JULY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2528 OF 2005

BETWEEN:

LA-RAINE LESLEY KEEN
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
RESPONDENT

JUDGE:

RARES J

DATE:

4 JULY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

I will make an order pursuant to O 62 r 4(2)(c) of the Federal Court Rules for the sum of the applicant's costs of the proceedings to be fixed in a total amount for the following reasons. I noted in my reasons for judgment in [49], the amount at issue in this matter is insubstantial. Ms Keen had to come to the court in order to have the decision of the Tribunal as to the manner in which the review was to be heard under s 69A of the Administrative Appeals Tribunal Act 1975 (Cth) reviewed. She has succeeded in that part of her appeal but substantially failed on the other two matters that were raised as questions of law.
Telstra submits that I should reserve the costs of the proceedings until after the outcome of the further review I have ordered is known. Alternatively, it submits that each party ought pay its own costs and thirdly it submits that following inquiries made of a registrar of the court an amount of between $10,000 to $15,000 would be allowed on an assessment of a matter of this kind were it taxed.
Ms Keen argues that, excluding GST, her total costs of this appeal amount to about $38,000 including the $21,000 for solicitors’ fees, $12,000 for counsel. Those amounts it should be noted include fees charged for attending the unsuccessful mediation which the parties voluntarily had with a registrar of the court.
The purpose of a fixed costs order under O 62 r 4(2)(c) is to save the parties the time, trouble, delay, expense and aggravation in having a taxation proceed on a matter. The court deals as a commonplace with administrative appeals of this nature. This appeal raised three issues of law of no particular complexity or difficulty so far as the need for large amounts of solicitors’ preparation were concerned. I must say I am quite staggered that an amount of $21,000 before GST has been incurred in solicitors costs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 930
Decision Date: 4 JULY 2006

CaseChat Overview and Summary

This case involved a dispute between La-Raine Lesley Keen, the applicant, and Telstra Corporation Limited, the respondent. The matter was heard in the Federal Court of Australia, New South Wales District Registry. The primary issue before the court was the quantification of the gross sum of the applicant's costs, pursuant to Federal Court Rules O 62 r 4(2)(c). The applicant sought to have her costs fixed in a total amount rather than having a taxation proceed, whereas the respondent argued for reserving the costs until the outcome of the further review was known or alternatively, for each party to pay its own costs.

The court considered the purpose of a fixed costs order under O 62 r 4(2)(c) to avoid the expense, delay, and aggravation involved in protracted litigation arising out of taxation. The court also noted that the appeal raised three issues of law of no particular complexity or difficulty, and was of an insubstantial amount. The court was particularly concerned with the excessive costs incurred by the applicant, including fees charged for attending the unsuccessful mediation. In light of these considerations, the court determined that fixing the amount of costs was appropriate to prevent further argument and delay in finalising the matter. The court fixed the sum of $13,500 to be paid by the respondent to the applicant, taking into account the applicant's partial success and the failed mediation. The court also acknowledged that further taxation would likely be required before the Administrative Appeals Tribunal, which would incur additional costs for both parties.

Orders