Morris v McConaghy Australia Pty Ltd (No.3) - [2018] FCCA 3052

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORRIS v MCCONAGHY AUSTRALIA PTY LTD (No.3)

[2018] FCCA 3052

Catchwords:

INDUSTRIAL LAW – Application to set aside the Certificate of Taxation.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.14
Federal Circuit Court Rules 2001 (Cth), rr.16.05, 20.01

Applicant:

JONATHON MORRIS

Respondent:

MCCONAGHY AUSTRALIA PTY LTD (ACN 168 218 380)

File Number:

SYG 1137 of 2017

Judgment of:

Judge Street

Hearing date:

16 August 2018

Date of Last Submission:

16 August 2018

Delivered at:

Sydney

Delivered on:

16 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr E Cox

Solicitors for the Applicant:

Aus Ship Lawyers

Solicitors for the Respondent:

Mr A Battagello
Lander & Rogers

ORDERS

The order made on 14 September 2017 is varied by deleting the words that appear after 28 June 2017 and inserting the words “as fixed by the Court”.
The Court sets aside the Certificate of taxation dated 23 July 2018.
The costs to be paid by the applicant to the respondent pursuant to the order made on 14 September 2017 as varied are fixed in the amount of $32,322.36.
The applicant to pay the respondent’s further costs of the application in a case fixed in the amount of $2,275.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1137 of 2017

JONATHON MORRIS

Applicant

And

MCCONAGHY AUSTRALIA PTY LTD (ACN 168 218 380)

Respondent

REASONS FOR JUDGMENT

These proceedings were commenced on 12 April 2017. On 28 June 2017, this Court made orders after orders for mediation were not able to be complied with for the putting on of evidence and fixing the matter for hearing on 17 August 2017.
Following the orders of this Court fixing the matter for hearing, proceedings were commenced in the Federal Court of Australia raising, in part, the same subject matter as the subject matter of these proceedings. No application had been advanced exploring this Court’s associated jurisdiction and the parties provided an order in the following terms:
1. The applicant pay the respondent’s legal costs and disbursements incurred in these proceedings on and from 28 June 2017 as well as reserved costs in an amount to be agreed or taxed under s.570 of the Fair Work Act 2009 (Cth).
Following the making of that order, the matter proceeded by way of the lodgement of a long-form bill of costs on 27 April 2018. A Registrar of the Court carried out an assessment in relation to that long-form bill of costs. The Court file reveals a notice of estimate being sent to all parties, including the office of the solicitor for the applicant, albeit it the solicitor’s address was not a DX address.
Following the issue of the notice of estimate on 23 July 2018, in the absence of engagement by the applicant in response to the notice, a certificate of taxation was issued by the Registrar. On 8 August 2018, an application in a case was filed seeking orders to have the certificate set aside on the basis that the…

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: [2018] FCCA 3052
Decision Date: 16 August 2018

CaseChat Overview and Summary

In *Morris v McConaghy Australia Pty Ltd (No.3)*, heard in the Industrial Relations Commission of New South Wales, the applicant, Morris, sought to set aside a certificate of taxation issued by the Registrar. The respondent was McConaghy Australia Pty Ltd.

The central legal issue before the Commission was whether the certificate of taxation, which determined the costs awarded in a previous proceeding, should be set aside. This required the Commission to consider the grounds upon which such a certificate could be challenged and the evidence necessary to support an application to set it aside.

Judge Street determined that the applicant had failed to demonstrate sufficient grounds to justify setting aside the certificate of taxation. The Commission applied the principles that a certificate of taxation is prima facie evidence of the correctness of the amount allowed and that an applicant bears the onus of proving that the taxation was incorrect. Without evidence of manifest error or injustice in the taxation process, the certificate would stand.

The application to set aside the certificate of taxation was dismissed.

Orders