Neate v Totally and Permanently Incapacitated Veterans Assoc. of NSW Limited (No.2)
[2007] FMCA 896
•2 May 2007
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
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