FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Meshram v Bing Lee Electrics Pty Ltd (Costs) [2024] FedCFamC2G 543
File number(s): SYG 2309 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 17 June 2024 Catchwords: HUMAN RIGHTS – COSTS – Where applicant wholly unsuccessful in establishing claims – whether usual rule that costs follow the event dislodged by respondents’ alleged misconduct – whether unrepresented litigant should pay costs on an indemnity basis for failure to accept Calderbank offer Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 46PSA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 139, 190, 214
Federal Court Act 1976 (Cth) ss 37M, 37N
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 4.06, 6.01, 11.01, 22.02, 22.05
Federal Court Rules 2011 (Cth) 4.03, Part 40
Cases cited: Bhagat v Global Custodians Ltd [2002] FCAFC 51
Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Calderbank v Calderbank [1975] 3 All ER 333
Grass v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 61
Jones v Braund (No 3) [2020] NSWDC 74
Lamb v Sherman (2023) 298 FCR 79
Latoudis v Casey (1990) 170 CLR 534
Lee v Procter and Gamble Australia Pty Ltd (No 2) [2012] FMCA 1075
Lehrmann v Network Ten Pty Ltd (Costs) [2024] FCA 486
Meshram v Bing Lee Electrics Pty Ltd (No 2) [2023] FedCFamC2G 784
Meshram v Bing Lee Electrics Pty Ltd[2022] FedCFamC2G 718
Oshlack v Richmond River Council (1998) 193 CLR 72
Roads Corp v Love [2010] VSC 581
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537
Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129
Division: General Federal Law Number of paragraphs: 138 Date of last submission/s: 7 February 2024 Date of hearing: 1 December 2023 Place: Sydney The Applicant: In person Counsel for the Respondents: Mr B Rauf Solicitor for the Respondents: Coleman Greig Lawyers ORDERS
SYG 2309 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AISHWARYA MESHRAM
Applicant
AND: BING LEE ELECTRICS PTY LTD
First Respondent
BIANCA NURSOO
Second Respondent
RAMZI YOUSIF (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
17 JUNE 2024
THE COURT ORDERS THAT:
1.For the purposes of these proceedings:
(a)Peter Harris, who was initially named as the second respondent by the originating application, is to be referred to as the seventeenth respondent;
(b)Ritchie Djamhur, who was initially named as the third respondent by the originating application, is to be referred to as the eighteenth respondent; and
(c)Sean Ng, who was initially named as the fourth respondent by the originating application, is to be referred to as the nineteenth respondent.
2.The applicant must pay the costs and disbursements of Bing Lee Electrics Pty Ltd of…
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- Case
- [2024] FedCFamC2G 543
- Decision Date
CaseChat Overview and Summary
The Court first addressed the issue of the misnumbering of the respondents, which arose due to procedural errors in the course of the proceedings. The Court resolved this by reassigning the correct numbers to the respondents, ensuring consistency in the documentation. The Court then examined the evidence provided by the respondents and Meshram, including affidavits and exhibits. The Court considered the statutory and regulatory framework governing costs in the Federal Circuit and Family Court of Australia, including the discretion of the Court to award costs and the overarching purpose of civil procedure provisions.
The Court concluded that, while costs generally follow the event, the principle is not absolute. The Court considered factors such as offers of compromise, Meshram's status as an unrepresented litigant, and the duty of parties to act consistently with the overarching purpose. The Court determined that Meshram should pay the costs of the respondents on an ordinary basis, noting that the proceedings were lengthy and complex, and that Meshram had not acted unreasonably in rejecting the offers of settlement. The Court also resolved that costs should be paid to Bing Lee, as it had already paid the individual respondents' costs. The Court declined to fix the costs in a specific amount, opting instead for an order that the costs be as agreed or, failing agreement, assessed under the Federal Court Rules.
Orders
Orders of the court
SYG 2309 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
AISHWARYA MESHRAM
Applicant
AND:
BING LEE ELECTRICS PTY LTD
First Respondent
BIANCA NURSOO
Second Respondent
RAMZI YOUSIF (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
17 JUNE 2024
THE COURT ORDERS THAT:
1. For the purposes of these proceedings:
(a) Peter Harris, who was initially named as the second respondent by the originating application, is to be referred to as the seventeenth respondent;
(b) Ritchie Djamhur, who was initially named as the third respondent by the originating application, is to be referred to as the eighteenth respondent; and
(c) Sean Ng, who was initially named as the fourth respondent by the originating application, is to be referred to as the nineteenth respondent.
2. The applicant must pay the costs and disbursements of Bing Lee Electrics Pty Ltd of and incidental to proceedings No NSD 530 of 2020 and SYG 2309 of 2021 (collectively the proceedings), on an ordinary basis.
3. The applicant must pay the costs and disbursements of Bianca Nursoo, on an ordinary basis, as follows:
(a) of and incidental to the proceedings from 11 May 2020 to 1 September 2022 (inclusive); and
(b) of the application in a proceeding made by the respondents on 28 September 2023 (costs application).
4. The applicant must pay the costs and disbursements of Ramzi Yousif, on an ordinary basis, as follows:
(a) of and incidental to the proceedings from 11 May 2020 to 1 September 2022 (inclusive); and
(b) of the costs application.
5. The applicant must pay the costs and disbursements of Mario Iacono, of and incidental to the proceedings including of the costs application, on an ordinary basis.
6. The applicant must pay the costs and disbursements of Richard Cortes, of and incidental to the proceedings including of the costs application, on an ordinary basis.
7. The applicant must pay the costs and disbursements of Claudio Musa, of and incidental to the proceedings including of the costs application, on an ordinary basis.
8. The applicant must pay the costs and disbursements of Ming Trang, of and incidental to the proceedings including of the costs application, on an ordinary basis.
9. The applicant must pay the costs and disbursements of Marian Mirza, of and incidental to the proceedings including of the costs application, on an ordinary basis.
10. The applicant must pay the costs and disbursements of Ken Zhuang, on an ordinary basis, as follows:
(a) of and incidental to the proceedings from 11 May 2020 to 1 September 2022 (inclusive); and
(b) of the costs application.
11. The applicant must pay the costs and disbursements of Fateen Khan, on an ordinary basis, as follows:
(a) of and incidental to the proceedings from 11 May 2020 to 1 September 2022 (inclusive); and
(b) of the costs application.
12. The applicant must pay the costs and disbursements of Kym Prendergast, of and incidental to the proceedings including of the costs application, on an ordinary basis.
13. The applicant must pay the costs and disbursements of Peter Harris, on an ordinary basis, as follows:
(a) of and incidental to the proceedings from 11 May 2020 to 10 November 2020 (inclusive); and
(b) of the costs application.
14. The applicant must pay the costs and disbursements of Ritchie Djamhur, on an ordinary basis, as follows:
(a) of and incidental to the proceedings from 11 May 2020 to 10 November 2020 (inclusive); and
(b) of the costs application.
15. The applicant must pay the costs and disbursements of Sean Ng, on an ordinary basis, as follows:
(a) of and incidental to the proceedings from 11 May 2020 to 10 November 2020 (inclusive); and
(b) of the costs application.
16. The costs and disbursements referred to in each of orders 2 to 15 above (inclusive) are to be paid in a sum either as agreed between the parties or, failing agreement being reached within 35 days of the date of this order, as taxed pursuant to Part 40 of the Federal Court Rules 2011 (Cth).
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
BACKGROUND
[4]
THE MISNUMBERING ISSUE
[5]
Submissions about the misnumbering issue
[20]
Resolution of the misnumbering issue
[25]
EVIDENCE IN THE COSTS APPLICATION
[35]
Affidavits
[35]
Exhibit “1R”
[38]
LEGISLATION
[44]
RELIEF SOUGHT
[51]
ISSUES FOR RESOLUTION
[53]
Whether to fix costs
[56]
Whether costs should follow the event
[61]
Alleged conduct disentitling
[66]
Deliberately protracting the proceedings
[73]
Failing to “consent” to the filing of the Amended Application
[81]
Breaching order 3 made by Justice Charlesworth on 9 July 2020
[85]
Changing of respondents’ defence in the litigation
[90]
Change of solicitor
[95]
The misnumbering issue
[103]
Conclusion
[104]
Offers of compromise and indemnity costs
[106]
Unrepresented litigants
[110]
Duty to act consistently with the overarching purpose
[126]
To whom costs ought be paid
[131]
CONCLUSION
[137]
SCHEDULE OF PARTIES
JUDGE GIVEN:
1.
On 31 August 2023, the Court delivered judgment in these proceedings: see Meshram v Bing Lee Electrics Pty Ltd (No 2) [2023] FedCFamC2G 784 (substantive judgment). The result of the substantive judgment was the dismissal of each and all of the applicant’s claims against the respondents.
2.
Upon delivery of the substantive judgment, the Court made orders that any costs application/s by the respondents be made on or before 28 September 2023, to be returnable for hearing at 10:15am on 27 November 2023 (August orders). A timetable was also made for the filing of evidence and written submissions by the respondents and Ms Meshram, 21 and 7 days (respectively) before that hearing fixture. Ms Meshram was present in Court for the making of the August orders.
3.
On 27 September 2023, an application in a proceeding was filed for the respondents in accordance with the aforementioned grant of leave (costs application), and made duly returnable on 27 November 2023. The costs application having been filed after 4:30pm on 27 September 2023 and accepted for filing on 28 September 2023, is taken to have been made on 28 September 2023: see Lamb v Sherman (2023) 298 FCR 79 at [54] per Rares, Rofe and Downes JJ. The costs application was made within time provided by the August orders.
BACKGROUND
4.
The background to these proceedings has been traversed by reasons given in each of Meshram v Bing Lee Electrics Pty Ltd [2022] FedCFamC2G 718 (interlocutory judgment) and the substantive judgment. For the purposes of the costs application, additional background matters have been revealed from evidence (predominantly regarding offers of settlement) and otherwise necessarily discerned from the Court file to the extent that they are now relevant to issues the parties raise. These will be addressed below as, and when, they arise.
THE MISNUMBERING ISSUE
5.
An additional issue became apparent to the Court upon commencement of the writing of these reasons for judgment (misnumbering issue).
6.
In short, the numbering used to identify the manifold respondents went askew during the life of the proceedings which, as addressed at [1] to [11] of the interlocutory judgment, had their genesis (in the Courts) in the Federal Court of Australia, before being transferred to this Court on 15 December 2021.
7.
The misnumbering issue arose as follows.
8.
At the time the proceedings were commenced in the Federal Court, there were 16 respondents to the proceedings, being:
(a) first respondent: styled as “Bing Lee Electrics Pty Ltd company & owner of Bing Lee Electrics Pty Ltd – Lionel Lee and Yenda Lee”;
(b) second respondent: Peter Harris;
(c) third respondent: Ritchie Djamhur;
(d) fourth respondent: Sean Ng;
(e) fifth respondent: Bianca Nursoo;
(f) sixth respondent: Ramzi Yousif;
(g) seventh respondent: Mario Iacono;
(h) eighth respondent: Richard Cortes;
(i) ninth respondent: Claudio Musa;
(j) tenth respondent: Ming Trang;
(k) eleventh respondent: Marian Mirza;
(l) twelfth respondent: Ken Zhuang;
(m) thirteenth respondent: Fateen Khan;
(n) fourteenth respondent: Kym Prendergast;
(o) fifteenth respondent: Martin Yalda; and
(p) sixteenth respondent: Dinh (Dione) Do Ngo.
9.
At the first case management hearing on 9 July 2020, Justice Charlesworth made an order removing the names Lionel Lee and Yenda Lee from the description of the first respondent. This removal had no effect on the numbering of the respondents.
10.
On 13 August 2020, Ms Meshram filed her Amended Application in the Federal Court which:
(a) simply omitted each of Messrs Harris, Djamhur and Ng as respondents, thereby abandoning her claims against them; and
(b) renumbered the remaining respondents by moving them up 3 places respectively. For example, Ms Nursoo was changed from being the fifth respondent to the second respondent, and so on and so forth for the remaining respondents.
11.
On 10 November 2020, Justice Charlesworth made an order (in Chambers) formally removing each of Messrs Harris, Djamhur and Ng as the second, third and fourth respondents (respectively). No order was made as to costs in respect of those respondents at that time. While it is true that, by reference to the Amended Application, Messrs Harris, Djamhur and Ng were no longer the subject of the pleading from 13 August 2020, to the extent that they remained as parties to the proceedings until their formal removal it is appropriate that their departure from the proceedings, relevant to the issue of their costs, be 10 November 2020.
12.
Following the transfer of the proceedings to this Court, the strike-out application was heard and determined by the interlocutory judgment, where at [133] the Court said as follows:
Accordingly, the following persons are no longer respondents to the proceedings:
(a) Bianca Nursoo, second respondent;
(b) Ramzi Yousif, third respondent;
(c) Ken Zhaung, ninth respondent; and
(d) Fateen Khan, tenth respondent.
13.
On 1 September 2022 the Court gave effect to the above by an order made the following terms:
2. Pursuant to s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) there be judgment for the respective respondents consequent upon the dismissal referred to in order 1 above, being the second, third, ninth and tenth respondents.
14.
On 28 September 2022, Ms Meshram filed the Further Amended Application upon which the proceedings were ultimately heard and determined. That Further Amended Application continued the mis-numbering used by the Amended Application.
15.
The misnumbering issue was not brought to the attention of Justice Charlesworth when the matter was in the Federal Court and was not readily apparent when her Honour made orders because the Federal Court file still bore the original numbering, such that when orders were produced, they referred to the individual respondents as originally numbered. By the time this Court came to hear the strike-out application, that application and the submissions made in support thereof, adopted the new numbering of the Amended Application. As a result of the misnumbering issue, the respondents are technically misdescribed in the interlocutory judgment and the substantive judgment.
16.
By itself, this would likely not have been anything more than a matter of technical significance. However, the misnumbering issue has now crystallised to having practical consequences because, by their costs application, the respondents have re-enlivened the original numbering because costs are sought by individual respondents who were named by the originating application but who, for various reasons, departed the proceedings prior to the substantive judgment, in circumstances where all costs questions remained to be resolved.
17.
On 20 December 2023, at my direction, my Associate wrote to the parties to notify them of the misnumbering issue and invite supplementary submissions as follows:
The Court would be assisted by the parties’ respective submissions as to how this mis/numbering is to be reconciled, particularly by reference to order 1(a) made by Charlesworth J on 10 November 2020 together with order 2 made by Judge Given on 1 September 2022 and the application now being made on behalf of all respondents. In particular, the parties should address how the number of the parties is to be reconciled and whether some additional order needs to be made to rectify the identity of which individuals were removed from the proceedings by the interlocutory judgment. Those submissions should also address any Rules of Court which might be required to be achieve uniformity on this question.
18.
A timetable was set for the parties to simultaneously file their aforementioned supplementary submissions, by 4:00pm on 7 February 2024, after which the costs judgment would stand reserved. The parties filed their respective supplementary submissions within the time allowed by the grant of leave, although Ms Meshram’s submission was not processed by the Registry until the following day. I have had regard to both sets of supplementary submissions to the extent that they address the misnumbering issue (noting that Ms Meshram’s supplementary submissions strayed to other topics).
19.
Prior to identification of the misnumbering issue, the Court anticipated that this judgment could have been delivered early in the 2024 Court term. The need for supplementary submissions, followed by two periods of leave on the part of the Court, regrettably resulted in that not being possible.
Submissions about the misnumbering issue
20.
The respondents submit that the misnumbering issue can be resolved by a lengthy set of orders to amend the orders made by the Court on 1 September 2022 and 31 August 2023 to include references to each of the respondents by the various numbering they have had throughout the proceedings.
21.
Ms Meshram makes supplementary submissions to the effect that:
(a) she is not responsible for the misnumbering issue and that the suggestion that it emanates from the Amended Application reflects the respondents’ “narcissist behaviour of blaming victim Ms Meshram”;[1]
(b) the failure of the respondents’ lawyers in identifying the misnumbering issue “is an implausible joke” and a sufficient basis alone to deny the respondents their costs of the proceedings;[2] and
(c) the Court’s failure to identify the “small error” of the misnumbering issue likely demonstrates that there are “big errors” in determinations made throughout the proceedings.[3]
22.
However, other than saying that the misnumbering issue should result in there being no costs order made against her, Ms Meshram did not propose any mechanism by which it could be resolved.
23.
The question of with whom responsibility rests for the misnumbering issue is not especially helpful in resolving it. It is clear that its genesis is the filing of the Amended Application. There were no doubt opportunities for Ms Meshram, the respondents and the Court to have noticed it along the way. The fact remains that, until a certain point, no one did and it must now be resolved. To the extent that the misnumbering issue has caused additional supplementary submissions to be prepared to aid in its resolution, the fact it was not identified except by the Court until after the costs hearing, and not raised by any party prior to that, means I am satisfied that any costs associated with resolution of the misnumbering issue should be costs in the cause.
24.
The regime proposed by the respondents to resolve the misnumbering issue would be both unnecessarily cumbersome, not substantively rectificatory and would cause additional confusion by reference to the text of the interlocutory and substantive judgments. For those reasons, the respondents’ proposal would also likely cause unnecessary and ongoing confusion in the appeal proceedings.
Resolution of the misnumbering issue
25.
There is no specific mechanism in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) to resolve this particular issue.
26.
Rule 4.06 of the Rules requires that an application must be made in the approved form and must state the names and addresses of parties to the proceeding. However, the Rules are silent as to the numbering of parties, albeit the approved forms do adopt sequential numbering in a case involving multiple parties.
27.
Rule 11.01 of the Rules deals with the inclusion of all necessary parties to a proceeding, but is also not instructive for a situation such as the present. It provides:
11.01 Necessary parties
(1) Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party to the proceeding.
(2) The Court may require a person to be included as a party.
(3) A person required to be included as an applicant who does not consent to be included may be included as a respondent.
(4) The Court may decide a proceeding even if a person is incorrectly included or not included as a party.
28.
In my view, the most elegant and preferable solution to the misnumbering issue is to re-cast the numerical description of relevant respondents who have been removed from the proceedings throughout (in each of the Courts) by re-adding them to the end of the schedule of respondents, and assigning them sequential numbering which has not previously been used to describe any respondent in these proceedings. In this way, the interlocutory judgment and substantive judgment, together with the orders made upon the delivery of each, will read consistently. For the purposes of the costs application, the orders which will give effect to its determination and any issue in the appeal proceedings, this solution allows those respondents to be numbered afresh, and consistently.
29.
By renumbering the parties in the manner addressed below, the Court has not added any parties who were not otherwise in the proceedings initially. However, it is the case that in order to completely and finally determine all matters in dispute in these proceedings, the inclusion of those parties is necessary, and they must be precisely identified for the purposes of determination of the costs application.
30.
Each of Martin Yelda and Dinh (Dione) Do Ngo will retain their numbering as the fifteenth and sixteenth respondents (respectively), despite the fact that no costs are sought in respect of either of them. It is in the interests of completeness to ensure that each of the original respondents to the proceedings[4] is necessarily present and accounted for (see [27] to [29] above).
31.
Next, orders will be made to the effect that:
(a) Peter Harris will be referred to as the seventeenth respondent;
(b) Ritchie Djamhur will be referred to as the eighteenth respondent; and
(c) Sean Ng will be referred to as the nineteenth respondent.
32.
Each of the other respondents will retain the numbering first attributed to them by the Amended Application, because it is that numbering which is used to identify them in the interlocutory judgment, and continued in the Further Amended Application upon which the matter was ultimately determined by the substantive judgment.
33.
A full list of the respondents which reflects the numbering used in this judgment forms the schedule to these reasons, as is the custom of the Court.
34.
It is likely that the appeal proceedings may benefit from adopting the same numbering for ease of reference to the interlocutory judgment and substantive judgment going forward. That will be a matter for the parties to raise in the appeal proceedings, and for the Federal Court to determine for itself.
EVIDENCE IN THE COSTS APPLICATION
Affidavits
35.
In support of their costs application, the respondents rely on the Affidavit of Caroline Kay Hutchinson sworn 10 November 2023 (Hutchinson Affidavit). Ms Hutchinson is the respondents’ (current) solicitor (see [95] to [102] below). Ms Meshram objected to Ms Hutchinson’s Affidavit on the basis that Ms Meshram had not had a sufficient period of time in which to consider it.
36.
In addition to her reliance on a Response document and written submissions (each filed on 28 November 2023), Ms Meshram also relies on an Affidavit made by her on 27 November 2023 (Meshram costs Affidavit).
37.
The respondents objected to the Meshram costs Affidavit on the basis that it was predominantly comprised of opinion evidence. It is accurate to say that, with the exception of some objective personal information (such as her age, gender and ethnicity) the Meshram costs Affidavit is really a written submission. The Court received the Meshram costs Affidavit as a submission (which was in one sense unnecessary because it largely repeats the content of the written submissions referred to in the preceding paragraph).
Exhibit “1R”
38.
In addition to the Hutchinson Affidavit, the respondents sought to tender a bundle of documents.
39.
The documents which form the bundle are entitled “Authority to Act”. They are in relevantly identical terms (save for the identity of the staff member to whom each pertains) being:
(a) Lionel and Yenda Lee (jointly);
(b) Bianca Nursoo;
(c) Ramzi Yousif;
(d) Mario Iacono;
(e) Richard Cortes;
(f) Claudio Musa;
(g) Ming Trang;
(h) Marian Mirza;
(i) Fateen Khan;
(j) Kym Prendergast;
(k) Peter Harris;
(l) Ritchie Djamhur; and
(m) Sean Ng.
(collectively, the authority documents).
40.
Of the aforementioned authority documents, the document which jointly pertains to Lionel and Yenda Lee appears irrelevant because they do not seek costs. On review of Exhibit “1R’ in preparing this judgment, it became apparent that no authority document was included for any of Ken Zhuang, Martin Yalda or Dinh (Dione) Do Ngo.
41.
The Court accepted the tender of the authority documents, which were collectively marked Exhibit “1R” over the objection of Ms Meshram. Those objections were twofold.
42.
Firstly, Exhibit “1R” was sought to be tendered at costs hearing, instead of being advanced by Affidavit/s filed pursuant to the August orders. The respondents concede that the bundle of documents which forms Exhibit “1R” was tendered outside of the time allowed by the Court for the filing of evidence, but contend that there is no prejudice to Ms Meshram. I agree. The documents which form Exhibit “1R” go only to the identity of to whom the respondents say any costs ordered should be paid. The documents do not inform whether costs should follow the event and/or on what basis they should be ordered.
43.
Some of the authority documents are also accompanied by a photocopy of the respective staff member’s NSW Driver Licence. The second basis for objection (albeit raised at the conclusion of the hearing) was that some of those Driver Licences have since expired. The significance of this was not particularly explained by Ms Meshram, and it is difficult to see any. As at the dates upon which those particular authority documents was executed, each of the respective Driver Licenses was current.
LEGISLATION
44.
Section 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) relevantly provides:
214 Costs
…
(2) The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.
Note: For further provision about the award of costs, see Division 4 of Part 6 and paragraphs 192(4)(d) and (e).
45.
Note 2 to ss 46PO(4) and 46PSA of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) make clear that this Court may award costs in proceedings under s 46PO, pursuant to s 214 of the FCFCOA Act.
46.
Rule 22.02 of the Rules provides:
22.02 Order for costs
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
47.
Relevant to the fact that these proceedings had their inception in the Federal Court, the Rules also make provision for costs of proceedings which are transferred from the Federal Court to this Court, by r 22.05 as follows:
22.05 Costs if proceedings transferred
(1) This rule applies if a proceeding is transferred to the Court from the Federal Court.
(2) If the Federal Court has not made an order for costs, the Court may make an order for costs including costs before the transfer.
(3) Unless the Federal Court otherwise orders, costs before the transfer must be in accordance with this Part.
48.
It is relevant to note that s 46PSA of the AHRC Act specially makes provision for consideration in human rights proceedings of offers of comprise, as follows:
46PSA Costs—court may have regard to an offer to settle
If:
(a) proceedings have been instituted under section 46PO against a respondent to a terminated complaint; and
(b) an applicant or respondent has made, or makes, an offer to settle the matter the subject of the complaint; and
(c) the offer was or is rejected;
the court, or a judge of the court, in deciding whether to award costs in the proceedings, may have regard to the offer.
Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under section 46PO—see section 43 of the Federal Court of Australia Act 1976.
Note 2: The Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, may award costs in proceedings under section 46PO—see section 214 of the Federal Circuit and Family Court of Australia Act 2021.
49.
In the interests of completeness, the following sections of the Court Act are also relevant in relation to costs. Section 190 of the FCFCOA Act provides:
190 Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
…
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
50.
Section 191 of the FCFCOA Act imposes a duty on parties and their legal representatives as follows, failure to adhere to which can sound in costs, pursuant to ss 191(4):
191 Parties to act consistently with the overarching purpose
(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2) A party’s lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party’s behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
(3) The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:
(a) the likely duration of the proceeding or part of the proceeding; and
(b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:
(i) the costs that the lawyer will charge to the party; and
(ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.
(4) In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5) Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party’s lawyer to bear costs personally.
(6) If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.
RELIEF SOUGHT
51.
The relief sought by the respondents’ costs application can be summarised as follows:
(a) Ms Meshram should be ordered to pay the respondents’ costs:
(i) on an ordinary basis from 11 May 2020 (when the proceedings were commenced in the Federal Court) until the lapsing/rejection of the respondents’ final offer of settlement on 11 November 2020;
(ii) on an indemnity basis from 12 November 2020 onwards; and
(iii) of the strike-out application which resulted in the interlocutory judgment, and of the costs application, each on an ordinary basis.
(b) that the costs of the various events-based time periods referred to at [51(a)] above, be ordered in a fixed amount;
(c) in the alternative to costs in a fixed amount, that costs for those events-based periods be paid in an amount to be assessed; and
(d) that all costs payable to the respondents be paid to Bing Lee on the basis that it has paid the individual respondents’ costs of these proceedings.
52.
The position of Ms Meshram can be summarised as being that she ought be held safe from any adverse costs order, or at least from costs on an indemnity basis because:
(a) the proceedings are public interest litigation;
(b) costs ought not follow the event because the respondents engaged in relevant misconduct which disentitles them to costs; and
(c) Ms Meshram was unable to make any informed decision/s about offers of settlement made to her because:
(i) she is an unrepresented litigant; and/or
(ii) offers of settlement were made during the COVID-19 pandemic, and therefore she was unable to make any informed decision/s about those offers due to difficulties accessing legal services.
ISSUES FOR RESOLUTION
53.
By reference to the respective parties’ positions as summarised above, the issues which arise for resolution in the costs application can be summarised as follows. Whether, in the exercise of the Court’s discretion:
(a) costs should follow the event, specifically by reference to Ms Meshram’s contention that the respondents have engaged in conduct disentitling;
(b) if costs should follow the event, whether those costs should be paid on an ordinary or indemnity basis, having regard to:
(i) various offers of compromise which went between the parties, but specifically an offer made by the respondents to Ms Meshram on 4 November 2020;
(ii) Ms Meshram’s position as an unrepresented litigant; and
(iii) the duty of parties imposed by ss 191(1) and (2) of the FCFCOA Act to act consistently with the overarching purpose; and
(c) if a costs order is to be made:
(i) to whom those costs ought be paid, noting that Bing Lee says it has paid the individual respondents’ costs; and
(ii) whether to fix those costs and, if so, in what amount.
54.
The following general costs principles were recently distilled by Lee J in Lehrmann v Network Ten Pty Ltd (Costs) [2024] FCA 486 by Lee J. Relevant to understanding the application of those principles in this Court is that ss 190 to 191 of the FCFCOA Act are relevantly analogous to ss 37M and 37N of the Federal Court Act 1976 (Cth) (respectively).
55.
In Lehrmann at [27] to [30] Lee J observed:
[27] First, an award of costs is in the discretion of the Court and although it has often been remarked the discretion is unfettered, s 37N(4) of the FCA Act requires the Court to take account of any failure by a party to comply with the overarching purpose of the civil procedure provisions, which, as noted above, is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M(1).
[28] Secondly, an award of indemnity costs is not a punitive measure, but is designed to compensate a party fully for costs incurred when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs: Hamod v New South Wales [2002] FCAFC 97; (2002) 188 ALR 659 (at 665 [20] per Gray J, Carr and Goldberg JJ agreeing). Consistently with the requirement to facilitate the overarching purpose, such circumstances may include where a proceeding is unduly prolonged by groundless contentions: see Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (No 2) [2017] FCAFC 116 (at [3]–[5] per Jagot, Yates and Murphy JJ).…
…
[30] Fourthly, as to offers of settlement, the relevant factors in considering whether the rejection of a Calderbank offer was unreasonable are well known and have been identified in many cases being: (a) the stage of the proceeding at which the offer was received; (b) the time allowed for the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree’s prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; and (f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.
Whether to fix costs
56.
Due to a concession made early in the costs hearing, it is first convenient to deal with the question at [53(c)(ii)] above, namely whether the Court should fix the amount of costs.
57.
Given that the respondents’ starting position was to seek a fixed costs order, much of the content of the Hutchinson Affidavit went to quantifying those costs. As a result, by her Affidavit and submissions in reply, Ms Meshram focussed on challenging various individual expenses, rather than matters which would inform the Court’s exercise of its discretion.
58.
There may be many cases in this Court where it is both practical and desirable to fix costs, having regard in particular to ss 190(1)(b) (and potentially also to s 139) of the FCFCOA Act. While the Court can understand the desirability on the part of the respondents to have any costs which the Court might order in the present case fixed, I am not satisfied that it is practical to do so given the degree of contentiousness between the parties of what can be generally described as an analysis of “line items” in invoices. Appreciating the degree of contentiousness early in the costs hearing, the respondents sought a brief adjournment to enable them to confer with and instruct their Counsel, as to whether to press for fixed costs.
59.
Following that brief adjournment, Counsel for the respondents indicated that they no longer sought fixed costs orders.
60.
Accordingly, the Court will proceed on that basis. In the event costs orders are to be made they will be made in terms that the amount of costs be as agreed or, failing agreement, as taxed under Part 40 of the Federal Court Rules 2011 (Cth) (FCA Rules) which is available pursuant to r 22.02(2)(c) of the Rules.
Whether costs should follow the event
61.
The respondents seek their costs relying on the principle that costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72 per McHugh J at [67], with the “event” referring to the outcome of some discrete stage/the entirety of proceedings where one party can be regarded as being the successful party. As confirmed most recently in Lehrmann (supra), the common law principle pertaining to costs is that a costs order is primarily to compensate a successful party and not punish an unsuccessful party.
62.
The Court observed in the substantive judgment at [6] that, having been brought and pursued in the human rights jurisdiction, these proceedings are ones in which the parties had exposure to costs if unsuccessful. In Lee v Procter and Gamble Australia Pty Ltd (No 2) [2012] FMCA 1075, Barnes FM (as her Honour then was) relevantly said the following about costs in the human rights jurisdiction of the Court by reference to s 79 of the (then)
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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