Michael Thomas John Cowley v Joanne Louise Abbey
[2013] ACTSC 163
•9 AUGUST 2013
MICHAEL THOMAS JOHN COWLEY v JOANNE LOUISE ABBEY
[2013] ACTSC 163 (9 AUGUST 2013)
PRACTICE AND PROCEDURE – claim for personal injury – liability admitted by defendant – claim for contributory negligence – plaintiff requested that court direct that defendant pay court fees – requirement for plaintiff to pay fees under Attorney-General’s (Fees) Determination – whether the court should order otherwise
Court Procedures Act 2004 (ACT) ss 14, 15, 16
Attorney-General’s (Fees) Determination 2012 items 1201, 1202
Attorney-General’s (Fees) Determination 2013 items 1201, 1202
No. SC 907 of 2007
Judge: Master Mossop
Supreme Court of the ACT
Date: 9 August 2013
IN THE SUPREME COURT OF THE )
) No. SC 907 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:MICHAEL THOMAS JOHN COWLEY
Plaintiff
AND:JOANNE LOUISE ABBEY
Defendant
ORDER
Judge: Master Mossop
Date: 9 August 2013
Place: Canberra
THE COURT ORDERS THAT:
The plaintiff and the defendant each pay half of any fee required to be paid upon filing of the certificate of readiness and half of the hearing fees in the proceedings.
This case involves a claim arising out of a motor vehicle accident. The defendant has admitted that she breached her duty of care to the plaintiff. A hearing date has already been set in the matter and the estimated length of the hearing is two weeks.
At the directions hearing on 28 June 2013 the solicitor for the plaintiff asked me to make a direction that the hearing fees in the matter be paid by the defendant. Prior to the directions hearing, the defendant had been requested by the plaintiff to pay the fees, said by the plaintiff to be $25,471, and the defendant had declined to do so. The defendant opposed the making of such a direction and sought an opportunity to make submissions on the issue. I directed that the defendant file written submissions and that the plaintiff have an opportunity to file written submissions in response.
The defendant points out:
(a) the fact that she has admitted a breach of her duty of care does not determine that she will ultimately be liable for the costs of the proceedings;
(b) her estimate of the length of the hearing is 4-5 days;
(c) there is a claim of contributory negligence which, the defendant will be argued to be 50%.
In the light of these matters the defendant makes the following submissions.
(a) There is no convention or practice in the Court that a defendant or her insurer will pay hearing fees where a breach of duty is admitted.
(b) There is no statement or presumption in the Attorney-General’s Fee Determination 2012 or in the Rules that in those circumstances such fees should be paid by the defendant.
(c) The plaintiff is entitled to apply for fees to be waived.
(d) If the defendant is required to pay the fees then it should be based on her estimate of the length of the hearing or shared between the parties.
The plaintiff makes the following submissions.
(a) There was agreement between the parties that that the proceedings should be listed for a two week hearing.
(b) “Community expectations as to access to Justice are that the courts will accommodate any lack of equality between powerful, wealthy litigants and under resourced litigants. The right of access to Justice is a right guaranteed to litigants pursuant to articles 14 (1) and 2 (3) of the International Covenant on Civil and Political Rights to which Australia is a signatory” (Footnotes omitted).
(c) The Court’s power to give directions for the purposes of case management include an order relating to setting down and hearing fees and that in deciding whether to make such an order the interests of justice are paramount. The plaintiff cannot easily or readily meet the statutory setting down fee and that it is not in the interests of justice to impose such a burden when liability has been admitted by the defendant’s compulsory third-party insurer.
(d) If the plaintiff is required to pay the setting down and hearing fee he could only do so at a rate of $200 per week which would mean these proceedings would not be in a position to be disposed of for approximately another 2.5 years.
(e) Deputy-Registrars of the Court have ordered the costs of setting down and hearing fees to be paid by defendants in cases where liability is admitted.
Consideration
The starting point for consideration of whether or not to make the directions sought by the plaintiff must be the relevant statutory provisions. Sections 13, 14, and 15 of the Court Procedures Act 2004 provide:
12Definitions—pt 3
In this part:
determined fee means a fee determined under this part.
fee includes a charge and a tax.
relevant legislation means any of the following:
...
(c)this Act;
...
(g)the Supreme Court Act 1933;
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
13Determination of fees
(1)The Minister may determine fees for any of the following purposes:
(a)proceedings in a court or the ACAT, and matters incidental to the proceedings, including—
(i)for the Supreme Court—the admission of lawyers; and
(ii)the service and execution of the process of a court or the ACAT; and
(iii)the assessment of costs;
(b)facilities and services provided by the court or the ACAT, including the service and execution of the process of a court of the Commonwealth, a State, another Territory or a foreign country;
(c)the general purposes of relevant legislation.
Note 1The Legislation Act contains provisions about the making of determinations and regulations relating to fees and charges (see pt 6.3).
Note 2A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations and rules (see Legislation Act, s 104).
(2)A determination under subsection (1) may provide for any of the following matters:
(a)exempting people from liability to pay determined fees, completely or partly, in all or particular circumstances;
(b)remitting, refunding or waiving, by a registrar of a court or the ACAT, determined fees, completely or partly, in particular circumstances;
(c)deferring, by a registrar of a court or the ACAT, liability to pay determined fees, completely or partly, in particular circumstances.
(3)A determination under subsection (1) is a disallowable instrument.
NoteA disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.
14Payment of fees
(1)A determined fee is payable, in advance, in accordance with the determination that determined the fee, but subject to this section.
(2)A determined fee is payable on notice from the registrar of the court or ACAT if it is worked out by reference to expenses actually incurred in exercising the function, or in providing the facility or service, for which the fee is payable.
15Remission, refund, deferral, waiver and exemption of fees
(1)A determined fee may be remitted or refunded, or liability for its payment deferred, in accordance with the determination that determined the fee.
(2)A determined fee is not payable—
(a)if the person otherwise liable to pay the fee or charge is—
(i)exempt from liability to pay the fee under the determination that determined the fee; or
(ii)exempt from paying the fee under the Legal Aid Act 1977, section 93 (1) (Exemption from fees and taxes); or
(iii)legally assisted under a scheme or service provided or approved by the Attorney-General; or
(b)if the registrar of the court or ACAT waives payment by a person of the fee completely or partly because the registrar considers that payment of the fee would impose hardship on the person—to the extent of the waiver; or
...
(e)if it is not payable under another provision of this Act or another territory law.
NoteThe Territory Crown is not liable to pay a determined fee in a civil proceeding (see s 28 (Court fees and charges)).
(3)This section is subject to section 16 and section 17.
As at 28 June 2012 the relevant fee determination was the Attorney-General’s (Fees) Determination 2012 (“the 2012 Determination”). As at 1 July 2013 that was replaced by the Court Procedures (Fees) Determination 2013 (“the 2013 Determination”). The triggers for the obligation to pay setting down fees have been amended as between the two determinations, largely to take into account the transition to the docket system. I will refer below to the 2013 Determination as being applicable since the obligation to pay fees will be triggered by the filing of a certificate of readiness which, notwithstanding the listing for hearing, the plaintiff has been directed, and failed, to file.
The 2013 Determination provides in item 1201 for the payment of what can be described as a setting down fee which is payable when a certificate of readiness is filed, when an application is made to fix a date for a hearing or a hearing date is actually set. In the case of a natural person the fee is $845.
It also provides in item 1202 for the payment of hearing fees for the second and subsequent days of a hearing. Those fees are on a sliding scale with the amount of the fee increasing as the estimated length of hearing increases. For a natural person the second, third and fourth days of the hearing incur a fee of $758 per day, the fifth, sixth, seventh, eighth and ninth days of the hearing incur a fee of $1,261 per day and the 10th to 13th days of the hearing incur fees of $2,538 per day. The 14th or later days incur a fee of $3,301 per day.
I note at this point that the plaintiff’s calculation of the fees payable under the 2012 Determination was dramatically inaccurate. That was because the plaintiff calculated the hearing fees on the basis of the application of the day 10 rate to each day of the hearing other than the first, rather than applying the relevant fee for each day on the sliding scale. Instead of the $25,417 as asserted by the plaintiff the amount payable was $11,619 ($821 plus 3 x $736 plus 5 x $1225 plus $2,465). Under the 2013 Determination the fee will be $11,962. It is unfortunate that this error, which should have been identified by the plaintiff or, failing that, the defendant, was not discovered by the parties as it may have affected their attitude to the payment of the fees.
The prima facie liability under the 2013 Determination of a party to pay what I have referred to as the setting down fee and hearing fees are subject to the Court ordering otherwise. In relation to “setting down fees” item 1201 provides:
The person liable to pay this fee is the party filing the document or if no document is
filed the plaintiff or the applicant unless the court otherwise orders. Subsequently, the
Court (which for the purposes of this determination includes the Registrar and the Deputy
Registrar) may order another party to contribute to the payment of the fee in suchproportion ordered.
In relation to hearing fees, item 1202 provides:
The person liable to pay the total fee unless the court orders otherwise is:
(a) Where a certificate of readiness is filed the party filing the certificate of
readiness; or(b) Where no certificate of readiness is filed the plaintiff, applicant or appellant.
The issue in the present case is whether the Court should order otherwise as contemplated by the provisions of the 2013 Determination set out above.
In considering this issue I note the following.
(a) There was no evidence of any hardship on the part of the plaintiff or any difficulty in paying the fees.
(b) There was no evidence of any application for waiver of the fees having been made by the plaintiff as he was entitled to do under s 15(b) of the Court Procedures Act.
(c) The assertions in the plaintiff’s written submissions as to whether or not the plaintiff could meet the fee and his capacity to pay at the rate of $200 per week had no evidentiary basis. The making of such submissions by the solicitor for the plaintiff where no attempt has been made to provide an evidentiary basis for them is a practice which should be discouraged.
In the absence of any evidence of hardship or inability to pay, the issue is relatively stark one. Should a defendant in proceedings subject to the Road Transport (Third Party Insurance) Act 1999 who has admitted liability pay or share the cost of a setting down and hearing fee in a case where the hearing fees will be substantial?
The 2013 Determination makes it clear that even without an order of the court the plaintiff is not necessarily the party required to pay the hearing fee. A party filing a certificate of readiness or an application to fix a date for the hearing of the proceeding is prima facie liable to pay the fee. Thus, there is no fixed rule that in the absence of a Court order, it is the plaintiff who must pay the fee although that is the default position.
The 2013 Determination expressly contemplates that the Court may “otherwise order”. The determination must be taken to have been made with the awareness of the existence of s 15(b) of the Act and hence the power to otherwise order should be interpreted as distinct from a waiver of fees permitted by that section and not necessarily dependent upon hardship on the part of the paying party.
I accept the submission of the defendant that admission of liability will not necessarily lead to the defendant paying the plaintiff’s costs of the proceedings. However the admission of liability does distinguish the case from one where liability and quantum are in issue. It does shift the prima facie position from one in which the plaintiff has a hurdle to overcome before he has an expectation of an award of costs, to a position where the defendant has a hurdle to overcome to avoid an expectation that she will be obliged to pay the costs. Therefore, in my view, the admission of liability in a case such as the present does provide a basis for the Court to otherwise order.
A willingness of the Court to depart from the usual position which would require the fee to be paid by the plaintiff could be seen as providing a disincentive to making appropriate admissions of liability and this might be argued (although it was not in this case) to provide a reason for hesitation to depart from the prima facie position. In terms of the costs of litigation, the possible requirement to pay or share a hearing fee is not such a great obligation as to significantly influence a decision about the making or timing of an admission of liability. The costs and risks associated with failing to make an early admission are likely to so outweigh any potential cost or risk associated with the payment of a filing fee that this is not, in my view, a good reason not to give weight to the admission of liability as a factor favouring an order to vary the plaintiff’s liability to pay the setting down and hearing fees.
Based on the limited material before me and the absence of anything other than the bare fact of the admission of liability, it is appropriate that I otherwise order so that the obligation to pay the fees associated with the setting down and hearing of the matter be shared equally between the parties. While I recognise that it would be open to make an order requiring the defendant to bear the whole of those fees, the absence of any evidence of difficulty in payment of the fee and the fact that both parties’ submissions were based upon substantial miscalculation of the fee means that I am not satisfied that I should go further than a 50:50 split.
I have taken into account the fact that the defendant has asserted that its estimate of four to five days of hearing is more accurate. When, on 31 May 2013 I gave leave to approach the List Clerk for a hearing date, I did so on the basis of a two week estimate. Court time is valuable and, if necessary, I will hear the parties further as to the appropriate time to be allocated to the hearing.
I will therefore order that the plaintiff and the defendant each pay half of any fee required to be paid upon filing of the certificate of readiness and half of the hearing fees in the proceedings.
I will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.
Associate:
Date: 2013
Counsel for the plaintiff: Mr N W H Kitchin
Solicitors for the plaintiff: Ken Cush & Associates
Counsel for the defendant: Ms V N Parkins
Solicitors for the defendant: Sparke Helmore
Date of hearing: 28 June 2013
Date of judgment: 9 August 2013
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