Neate v Totally and Permanently Incapacitated Veterans Assoc. of NSW Limited (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NEATE v TOTALLY & PERMANENTLY INCAPACITATED VETERANS’ ASSOC. OF NSW LIMITED (No.2)

[2007] FMCA 896

COSTS – HUMAN RIGHTS – Application of the Federal Magistrates Court scale.

Federal Magistrates Act 1999 (Cth), s.17A
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO

Neate v Totally and Permanently Incapacitated Veterans’ Association of New South Wales Limited [2007] FMCA 488

Applicant:

PETER ALFRED NEATE

Respondent:

TOTALLY AND PERMANENTLY INCAPACITATED VETERANS’ ASSOCIATION OF NEW SOUTH WALES LIMITED

File Number:

SYG2760 of 2006

Judgment of:

Driver FM

Hearing date:

2 May 2007

Delivered at:

Sydney

Delivered on:

2 May 2007

REPRESENTATION

Solicitors for the Applicant:

Mr W Purdon
William Purdon, Solicitor

Counsel for the Respondent:

Ms C Ronalds SC

Solicitors for the Respondent:

John M Fitzgerald & Associates

INTERLOCUTORY ORDERS

The Court certifies that it was reasonable for the respondent to be represented by counsel at each hearing in this matter for the purposes of rule 21.15 of the Federal Magistrates Court Rules 2001 (Cth).
The applicant shall pay the respondent’s costs and disbursements of and incidental to the application in accordance with schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2760 of 2006

PETER ALFRED NEATE

Applicant

And

TOTALLY AND PERMANENTLY INCAPACITATED VETERANS’ ASSOCIATION OF NEW SOUTH WALES LIMITED

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter I have ordered that the application under the Human Rights and Equal Opportunity Act 1986 (Cth) be dismissed summarily pursuant to section 17A(2) of the Federal Magistrates Act 1999 (Cth)[1]. In consequence of that order, the successful respondent seeks an order for costs. The respondent seeks costs under the Federal Magistrates Court scale and an advocacy certificate.
[1] Neate v Totally and Permanently Incapacitated Veterans’ Association of New South Wales Limited [2007] FMCA 488
The applicant submitted that I should take into account that the applicant at all times would have preferred the matter to be dealt with on the papers. The general principle is, of course, that costs follow the event and it is obvious that the respondent has been wholly successful and on a summary basis.
It is possible but unlikely that the costs outcome would at least have been no more if the matter had proceeded to a final hearing on the papers without the need for an oral hearing as the applicant requested. The respondent was opposed to that course and, in the light of the Federal Magistrates Act and the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) that require the consent of both parties before an oral hearing can be dispensed with, that course was not open to me. If that course had have been taken, I almost certainly would have required written submissions which would have required the legal representatives incurring additional expense on behalf of their clients. I doubt that any significant saving would have been achieved over the disposal of the matter at the interlocutory stage on the application of the respondent.
Having considered the matter, I agree that the applicant should pay the respondent’s costs in accordance with the Federal Magistrates Court scale. At all times, the respondent was represented by counsel and I am satisfied that that representation was reasonable in the circumstances. Counsel sought to have the detail of the application drawn out and then sought, properly as it turns out, to have the matter disposed of summarily.
I will order that the Court certifies that it was reasonable for the respondent to be represented by counsel at each hearing in this matter for the purposes of rule 21.15 of the Federal Magistrates Court Rules.

I will further order that the applicant pay the respondent association’s costs and disbursements of and incidental to the application in accordance with schedule 1 to the Federal Magistrates Court Rules, noting that stage 1 and stage 2 costs have been incurred in this matter as well as stage 6 costs to take judgment and explain orders, plus disbursements other than counsel’s fees.
In the event that any clarification of the amount of costs recoverable under the schedule is required and the parties are unable to reach agreement, the appropriate course is to seek to have the matter relisted so that the issue can be dealt with by me in court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 8 June 2007

The Federal Magistrates Court of Australia heard an application for costs from the respondent, Totally and Permanently Incapacitated Veterans’ Association of New South Wales Limited, following a summary dismissal of the applicant’s application under the Human Rights and Equal Opportunity Act 1986 (Cth). The applicant, Peter Alfred Neate, had sought to challenge a decision by the respondent association, which was unsuccessful. The court was tasked with determining the appropriate costs order in light of the Federal Magistrates Act 1999 (Cth) and the Federal Magistrates Court Rules 2001 (Cth).

The primary issue before the court was whether the respondent was entitled to recover costs from the applicant in accordance with the Federal Magistrates Court scale, and if so, whether those costs should include an advocacy certificate. The applicant argued that the matter could have been resolved on the papers without an oral hearing, potentially saving costs. The respondent, however, insisted on proceeding to an oral hearing to expedite the resolution of the matter. The court considered whether the representation by counsel for the respondent was reasonable and justified under the circumstances.

The court found that the respondent's use of counsel was reasonable and necessary given the procedural requirements of the Federal Magistrates Act and the Federal Magistrates Court Rules, which necessitate the consent of both parties to dispense with an oral hearing. The court concluded that the applicant should bear the respondent's costs in accordance with the Federal Magistrates Court scale, considering the procedural stages involved and the costs incurred by both parties. The court also certified that it was reasonable for the respondent to be represented by counsel throughout the proceedings.

The court ordered that the applicant, Peter Alfred Neate, pay the respondent’s costs and disbursements in accordance with the Federal Magistrates Court Rules. The order included costs for stages 1 and 2, as well as stage 6, which encompasses taking judgment and explaining the orders, along with disbursements excluding counsel's fees. The court suggested that any disputes regarding the amount of recoverable costs should be resolved by relisting the matter for further determination.

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Legal Principle Established