FEDERAL COURT OF AUSTRALIA
Milkins v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 3) [2021] FCA 1421
File number(s): VID 106 of 2019 Judgment of: O'CALLAGHAN J Date of judgment: 17 November 2021 Catchwords: PRACTICE AND PROCEDURE – costs – where applicant unsuccessfully opposed an application to strike out amended statement of claim – whether appropriate to order that the legal representatives personally bear costs under s 43(3)(f) of the Federal Court of Australia Act 1976 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth) s 43(3)(f) Cases cited: Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 6 Date of last submission/s: 1 November 2021 Date of hearing: Determined on the papers Counsel for the Applicant: Mr DJ Hancock Solicitor for the Applicant: Starnet Legal Pty Ltd Counsel for the Respondent: Mr AG Manos Solicitor for the Respondent: Wotton & Kearney Lawyers ORDERS
VID 106 of 2019 BETWEEN: JAELAH MILKINS
Applicant
AND: DIOCESES OF SALE CATHOLIC EDUCATION LTD (ST JOSEPH'S PRIMARY SCHOOL WONTHAGGI)
Respondent
ORDER MADE BY:
O'CALLAGHAN J
DATE OF ORDER:
17 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Starnet Legal Pty Ltd and Mr DJ Hancock of counsel are to bear personally the legal costs of the respondent incurred in relation to its interlocutory application dated 1 July 2020, including the costs related to the preparation of the submissions on costs filed by the respondent on 1 November 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
In Milkins v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 2) [2021] FCA 1103 (Milkins (No 2)), I made orders striking out [13]‑[19] and [32]‑[45] of the applicant’s amended statement of claim (ASOC) filed on 19 November 2019, on the basis that the impugned paragraphs wholly failed to plead any proper cause of action.
I also made an order that the legal representatives for the applicant file and serve any submissions or evidence in relation to the question of whether they should personally bear the costs of the respondent’s application by 4:00pm on 4 October 2021, being 21 days after the date of the order.
This proceeding is related to VID 107 of 2019, in which I made similar orders in respect of a strike‑out application in relation to the amended statement of claim in that proceeding. See Harvey v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 2) [2021] FCA 1102 (Harvey (No 2)), which records the substance of my reasons in relation to the strike‑out applications in both proceedings. The applicants in each proceeding have engaged the same legal representatives to represent them.
These reasons should be read together with the reasons in VID 107 of 2019, Harvey v Dioceses of Sale Catholic Education Ltd (St Joseph’s Primary School Wonthaggi) (No 3) [2021] FCA 1420 (Harvey (No 3)), and will be published simultaneously.
As Milkins (No 2) records, the impugned paragraphs of the ASOC, and the written submissions filed by both parties, in this proceeding were “cookie cutter” versions of the paragraphs impugned and submissions made in Harvey (No 2). The submissions filed by both parties on the question of costs were similarly “cookie cutter” documents across both proceedings. And the correspondence set out in Harvey (No 3) between the parties, and the legal practitioners and my chambers, relates to both proceedings.
Accordingly, I will make the same order I made in Harvey (No 3) that Starnet Legal Pty Ltd and Mr DJ Hancock of counsel are to bear personally the legal costs of the respondent incurred in relation to its interlocutory application dated 1 July 2020, including the costs related to the preparation of the submissions on costs filed by the respondent on 1 November 2021.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan. Associate:
Dated: 17 November 2021
- AGLC
- Milkins v Dioceses of Sale Catholic Education Ltd (St Joseph's Primary School Wonthaggi) (No 3) [2021] FCA 1421
- Case
- [2021] FCA 1421
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether it was appropriate to order the plaintiff's legal representatives to personally bear the costs of the defendant's interlocutory application to strike out the amended statement of claim. The plaintiff argued that the order should not be made as the application was not frivolous, and the defendant had not acted unreasonably in pursuing it. The defendant argued that the application was frivolous, and the costs should be borne personally by the plaintiff's legal representatives.
The court found that the plaintiff's opposition to the application to strike out was not frivolous and that the defendant had not acted unreasonably in pursuing the application. However, the court found that the plaintiff's legal representatives had acted unreasonably in opposing the application, and it was appropriate to order them to personally bear the costs of the application. The court found that the plaintiff's legal representatives had not provided a valid basis for opposing the application, and their conduct in doing so was unreasonable.
Accordingly, the court ordered that Starnet Legal Pty Ltd and Mr DJ Hancock of counsel, the plaintiff's legal representatives, were to bear personally the legal costs of the defendant incurred in relation to its interlocutory application dated 1 July 2020, including the costs related to the preparation of the submissions on costs filed by the respondent on 1 November 2021. The court's order was made under section 43(3)(f) of the Federal Court of Australia Act 1976, which allows the court to order that a party bear their own costs if the court considers it appropriate.
Orders
Orders of the court
1. Starnet Legal Pty Ltd and Mr DJ Hancock of counsel are to bear personally the legal costs of the respondent incurred in relation to its interlocutory application dated 1 July 2020, including the costs related to the preparation of the submissions on costs filed by the respondent on 1 November 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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