Modra v State of Victoria - [2013] FCA 779

FEDERAL COURT OF AUSTRALIA
Modra v State of Victoria [2013] FCA 779

Citation: Modra v State of Victoria [2013] FCA 779

Parties: LUKE MODRA (BY HIS NEXT FRIEND ELLEN MODRA) v STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES VICTORIA)

File number: VID 844 of 2010

Judge: TRACEY J

Date of judgment: 7 August 2013

Catchwords: COSTS – application for taxation of costs order made pursuant to s 37N of the Federal Court of Australia Act 1976 (Cth) – whether costs order to be taxed at interlocutory stage of the proceeding – application granted.

Legislation: Federal Court of Australia Act 1976 (Cth) – s 37N
Federal Court Rules 2011 – r 40.13

Cases cited: Kuek [2012] FCA 494 – referred to
Kuek v The Honourable Justice Gray & Ors [2012] HCATrans 273 – referred to
Modra v State of Victoria (2012) 205 FCR 445 – referred to

Date of hearing: 2 August 2013

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 34

Counsel for the Applicant: Mr P Bingham

Solicitor for the Applicant: Access Law

Counsel for the Respondent: Mr C P Young

Solicitor for the Respondent: Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 844 of 2010

BETWEEN:
LUKE MODRA (BY HIS NEXT FRIEND ELLEN MODRA)
Applicant

AND:
STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES VICTORIA)
Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

2 AUGUST 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Notwithstanding Rule 40.13 of the Federal Court Rules 2011 the costs orders made in paragraph 1 of the orders made by Justice Gray on 19 March 2012 be taxed immediately.
2.Mr Gabriel Kuek pay the respondent’s costs of the present interlocutory application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 844 of 2010

BETWEEN:
LUKE MODRA (BY HIS NEXT FRIEND ELLEN MODRA)
Applicant

AND:
STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES VICTORIA)
Respondent

JUDGE:

TRACEY J

DATE:

2 AUGUST 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

There is before the Court an application by the respondent, the State of Victoria, for an order to be made that a costs order, made against a solicitor, Mr Gabrielle Kuek, personally by Gray J on 19 March 2012, be taxed immediately.
The background to the application is to be found in the reasons for decision of his Honour Gray J, and need not be repeated in great detail: see Modra v State of Victoria (2012) 205 FCR 445. Suffice it to say that the order was made because his Honour considered that costs had been thrown away in the proceeding because of the filing of two successive deficient statements of claim by Mr Kuek’s firm which, at the time, was acting for the applicant in the proceeding, Luke Modra.
His Honour’s order was subject to an application for leave to appeal that was considered by Jessup J: see Kuek [2012] FCA 494

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: [2013] FCA 779
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Modra v State of Victoria involved Luke Modra, represented by his next friend Ellen Modra, as the applicant, and the State of Victoria (Department of Human Services Victoria) as the respondent. The central dispute pertained to the taxation of a costs order made against Mr. Gabrielle Kuek, a solicitor who was previously representing the applicant in the proceeding. The court was tasked with deciding whether the costs order made by Justice Gray on 19 March 2012 should be taxed immediately despite Rule 40.13 of the Federal Court Rules 2011, which generally requires that costs orders made on interlocutory applications not be taxed until the conclusion of the proceeding.

The court considered several factors in its reasoning. Firstly, the order made against Mr. Kuek was an extraordinary one, targeting a solicitor rather than a party to the proceeding. The burden of this order did not affect the applicant due to the prohibition under section 37N of the Federal Court of Australia Act 1976 from recovering such costs from the client. Additionally, Mr. Kuek had ceased to represent the applicant after Justice Gray raised the prospect of making a personal order against him, effectively ending his involvement in the proceeding. The court also noted that the proceeding was far from concluded, with the trial scheduled for May 2014. Mr. Kuek opposed the application on grounds including the delay in making the application for dispensation from Rule 40.13, the possibility of the High Court quashing the orders, and potential financial difficulties if he were compelled to pay the costs. The court found these arguments unconvincing, particularly in light of the careful reasoning behind Justice Gray's order and the low likelihood of success in the ongoing High Court proceedings.

In conclusion, the court granted the State of Victoria's application, ordering that the costs orders made by Justice Gray on 19 March 2012 be taxed immediately, notwithstanding Rule 40.13 of the Federal Court Rules. The court also ordered that Mr. Gabriel Kuek pay the respondent's costs of the interlocutory application.

Orders