Naumovic v District Council of Coober Pedy (No 2)

[2023] FedCFamC2G 139

Federal Circuit and Family Court of Australia

(DIVISION 2)

Naumovic v District Council of Coober Pedy (No 2) [2023] FedCFamC2G 139

File number:

ADG 33 of 2022

Judgment of:

JUDGE LUCEV

Date of judgment:

22 February 2023

Catchwords:

BANKRUPTCY – Costs – where applicant’s application for review of a Registrar’s decision to set aside a bankruptcy notice dismissed – whether appropriate in the circumstances for costs to be assessed by a Registrar of the Court – where the litigation history between the parties is substantial – whether costs assessed by a Registrar would be consonant with the objects of the overarching civil practice and procedure rules – whether costs to be assessed on Court’s General Federal Law scale

Legislation:

Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190

Federal Court Rules 2011 (Cth) Pt 40

Cases cited:

Naumovic v District Council of Coober Pedy [2023] FedCFamC2G 125

Division:

Division 2 General Federal Law

Number of paragraphs:

10

Date of last submissions:

22 February 2023

Date of hearing:

22 February 2023

Place:

Perth (delivered by video-link to Adelaide)

Applicant:

In person via CISCO Webex

Counsel for the Respondent:

Mr J Napier via CISCO Webex

Solicitor for the Respondent:

Norman Waterhouse

ORDERS

ADG 33 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GEORGE NAUMOVIC

Applicant

AND:

DISTRICT COUNCIL OF COOBER PEDY

Respondent

order made by:	JUDGE LUCEV
DATE OF ORDER:	22 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The Applicant pay the Respondent’s costs in the sum of $10,000 by 22 March 2023.

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
(Delivered ex tempore and revised from transcript)

JUDGE LUCEV

1. This morning the Court has delivered Reasons for Judgment dismissing an application by Mr George Naumovic (“Mr Naumovic”) for review of a Registrar’s decision dismissing Mr Naumovic’s application to set aside a bankruptcy notice: Naumovic v District Council of Coober Pedy [2023] FedCFamC2G 125 (“Naumovic – Review Application”). The issue of costs arise and the Court has invited submissions from the parties as to what order ought to be made.

2. There appear to be three bases on which an order for costs may be made. The first is the usual order in bankruptcy, that if costs are not agreed, they be assessed by a Registrar of the Court under Pt 40 of the Federal Court Rules2011 (Cth) (“Federal Court Rules”). The second is for the Court to simply make a lump sum award of costs. The third is for costs to be fixed by reference to Sch 2 (“Costs Schedule”) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”).

3. The usual course, assessment by a Registrar under the Federal Court Rules, would, in the Court’s view, not be advisable in this case. It would require further Court time before a Registrar and the expenditure of at least some time and effort by the parties in arguing costs. Given what the Court knows of the history and experience of the litigation involving Mr Naumovic and the respondent, the District Council of Coober Pedy (“Council”), in the Supreme Court of South Australia (“SCSA”) and the Magistrates Court of South Australia, which is referred to in Naumovic – Review Application, there is no prospect of an agreement of costs on the Federal Court scale, which is a scale, which at least conceptually, is not dissimilar to the SCSA costs scale which has resulted in not insignificant disputes and hearings involving the parties in the SCSA, and not limited to that which resulted in the issuance of the bankruptcy notice.

4. Given the litigation history between the parties the usual course referred to of referring the matter to a Registrar for assessment would not result in an outcome consonant with the objects of the overarching civil practice and procedure provisions in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), and in particular would not:

   (a)facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible: s 190(1)(b) of the FCFCOA Act;

   (b)result in the efficient use of judicial and administrative resources: s 190(2)(b) of the FCFCOA Act;

   (c)efficiently and in a timely manner dispose of the proceedings; s 190(2)(c) and s190(2)(d) of the FCFCOA Act; and

   (d)provide for the resolution of the dispute, at least as to costs, at a cost proportionate to its importance and complexity: s 190(2)(e) of the FCFCOA Act.

5. The Court could award costs on its own assessment on a lump sum basis, but does not think that there is sufficient evidence or information presently before the Court to enable the Court to properly assess the matter on a lump sum basis. That leaves an assessment of costs under the Costs Schedule, which provides for an event-based costs scale with fixed sums for each event, and which was intended, and which utilised properly, does facilitate the making of costs orders quickly, inexpensively and efficiently, and in this case without prolonging the dispute between the parties by unnecessary further hearings and procedures. As such, recourse to the Costs Schedule of the GFL Rules is a course consistent with the provisions of s 190(1) and (2) of the FCFCOA Act, and also to the not dissimilar overarching purposes in r 1.04 of the GFL Rules.

6. Applying the Costs Schedule results in costs as follows:

   (a)for initiating the application and opposing it up to the completion of the first Court date, which for these purposes was before Judge Brown on 18 October 2022, and a directions hearing, two separate items 1 and 9, costs of $3,147 and $321 respectively;

   (b)for preparation for final hearing, the minimum sum being for a one-day final hearing, and given the volume of material, if not the length of the hearing itself here, that is an appropriate sum in the Court’s view, and that is item 7 providing a sum of $7,076; and

   (c)for final hearing, taking of judgment and explanation of the orders, two sums of $342.19 in accordance with item 8.

7. The Court should say that the Costs Schedule that has been applied is the Costs Schedule which applies up to 31 December 2022, save for the last item which applies the Costs Schedule as revised and applicable from 1 January 2023. That gives a total sum of $11,228.38.

8. Mr Napier, counsel for the Council, has appropriately and properly in the circumstances stated that the Council has not incurred costs of that order in these proceedings, and says that the Council only presses for an order for costs in the sum of $10,000.

9. In the Court’s view that concession, if it can be put in that way, is properly made and appropriate and the Court will therefore reduce the sum that was otherwise payable pursuant to the Costs Schedule, to costs in the sum of $10,000.

10. There being no dispute in this case that costs ought to follow the event there will therefore be an order that Mr Naumovic pay the Council’s costs in the sum of $10,000 by 22 March 2023.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       24 February 2023