Nicholl Holdings Pty Ltd v Minister for Health (No.2)
[2014] FCCA 1272
•18 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NICHOLL HOLDINGS PTY LTD v MINISTER FOR HEALTH (No.2) | [2014] FCCA 1272 |
| Catchwords: ADMINISTRATIVE LAW – Costs – Administrative Decisions (Judicial Review) Act 1977 (Cth) – consideration of costs regarding application for leave to proceed out of time when successful – no order as to costs – consideration of successful application for review – whether costs should be on an indemnity basis – determination to order costs as per scale – whether to counsel required due to complexity. |
| Legislation: Federal Court Rules (2011), Part 40 |
| Mentink v Minister for Home Affairs [2013] FCAFC 113 SZRTP v Minister for Immigration & Anor [2013] FCCA 711 BC Galleries (Vic) Pty Ltd (ACN 126 415 865) v Commonwealth of Australia [2013] FMCA 44 Oshlack v Richmond River Council (1998) 193 CLR 72 |
| Applicant: | NICHOLL HOLDINGS PTY LTD ACN 063 703 748 |
| Respondent: | MINISTER FOR HEALTH |
| File Number: | BRG 284 of 2013 |
| Judgment of: | Judge Coker |
| Hearing date: | In Chambers |
| Date of Last Submission: | 18 March 2014 |
| Delivered at: | Townsville |
| Delivered on: | 18 June 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Roberts Nehmer McKee Lawyers |
| Solicitors for the Respondent: | Ashurst Australia |
ORDERS
There be no order as to costs in respect of the application filed 11 April 2013.
The respondent pay the applicant's costs of and incidental to the application filed 24 May 2013 in accordance with Schedule 1 of the Federal Circuit Court Rules 2001, as agreed, and failing agreement, as may be assessed.
The parties are to bear their own costs of and incidental to this costs application.
This matter reasonably required the attendance of Counsel.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
BRG 284 of 2013
| NICHOLL HOLDINGS PTY LTD ACN 063 703 748 |
Applicant
And
| MINISTER FOR HEALTH |
Respondent
REASONS FOR JUDGMENT
On 24 February 2014, I delivered reasons for judgment and orders in this matter. The issue of costs remained unresolved between the parties, and at the time that reasons were delivered I indicated that if agreement could not be reached in relation to costs, then it would be appropriate for there to be written submissions provided, and, unless specifically requested, that a determination be made in chambers.
Written submissions as to costs have been provided on behalf of both the applicant and the respondent, and it is clear, unfortunately, that the parties were unable to reach any agreement in relation to costs.
The positions of each of the parties can be summarised as follows. The applicant seeks an order pursuant to rule 21.02(2)(c) of the Federal Circuit Court Rules 2001 to the effect that the Court exercise its discretion to refer the applicant's party and party costs for taxation, pursuant to provisions of part 40 of the Federal Court Rules 2011.
Rule 21.02 (2)(c) is in these terms:
In making an order costs in a proceeding, the Court may …
(c)refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules;...
The submission made on the part of the applicant, is that it is appropriate for the referral as sought, in relation to this matter, arising from issues including prior attempts to settle the proceedings, the nature of the proceedings, the evidence called, and the complexity of the proceedings.
From the respondent's perspective it is contended, firstly, that there should be no orders made in relation to the application for leave to proceed by way of an extension of time, and whilst it is conceded that it is appropriate that costs should be ordered otherwise, the orders that are sought in that regard are to the effect that the respondent should pay the applicant's costs of the application, filed 24 May 2013, in accordance with schedule 1 of the Federal Circuit Court Rules 2001 as agreed, and failing agreement, as may be assessed by the Court.
Costs are an exercise of discretion performed by the courts, at the conclusion of proceedings. It is perhaps unnecessary to say, but the general position in relation to costs, certainly in respect of general federal law, is that costs follow the cause. In other words, if an application is brought and it is successful, the respondent is required to pay the costs associated with bringing that successful application, and if an application is brought and is unsuccessful, then the applicant would be required to pay the costs associated with the respondent's defence of the application, so as to ensure that there is, at least on the face of it, some consequences of the bringing of proceedings which are unsuccessful.
I intend to deal with the application in relation to this matter in two parts, because, as is clear, there were two specific applications which were required to be dealt with.
The first was the application for an extension of time to lodge an application for an order of review, pursuant to section 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 and the second application was premised upon the understanding that leave was granted for the extension of time, and it then sought a review pursuant to provisions of section 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977.
Orders were made on 24 January 2014, granting an extension of time to proceed with the application and then ordering a review of the administrative decision, in relation to the proceedings.
The orders sought in relation to costs on behalf of the applicant are simply that there should be an order pursuant to rule 21.02 (2)(c) in respect of both aspects of the application. From the perspective of the respondent, however, a distinction is suggested as appropriate, and it is proposed that there should be, at the very least, no orders made in relation to costs associated with the application for leave to proceed out of time.
I am inclined to the view that that is appropriate. Whilst, certainly, I found that there was no inordinate or unreasonable delay in relation to the bringing of the application, it being the case that there appears to have been a number of "false starts" in relation to proceedings, it is not an issue that was brought about in any way, as a result of the actions of the respondent. Rather, it arose from the somewhat difficult path that is required to be followed in relation to proceedings, particularly with the bringing of an application under the Administrative Decision (Judicial Review) Act.
In that respect, I was referred, understandably, by the respondent to the recent decision of Griffiths J in Mentink v Minister for Home Affairs [2013] FCAFC 113, where the Court observed that it was not appropriate for the appellant, though successful on appeal from a refusal to extend time, to institute judicial review proceedings to seek costs. The Full Court there was of the view, that there should be no costs order made in relation to the appeal, which was determined favourably.
I agree with that view. It is inappropriate to suggest that a failure on the part of the applicant, however it may have come about, should be visited upon the respondent, when a successful application is made for an extension of time, by way of a costs order. The appropriate consideration is for each party, at the very least, to bear their own costs, and I am satisfied that that is the appropriate course to follow in relation to this matter.
It reflects the need, no matter what might have been the circumstances that preceded the application for extension of time, to be mindful of the fact that there are time limits and they are required to be complied with. If there is a failure to do so, whilst there may be an appropriate remedy by way of leave being granted to proceed out of time or to allow an extension of time, it is not in any way an application which should result in costs being visited upon the respondent, who has simply been brought into the proceedings and has taken the proper opportunity to oppose an application which, if successful, would bring to an end litigation, and, of course, therefore reduce significantly the costs that would otherwise be incurred by both parties in proceeding with other aspects of any application.
I am satisfied, therefore, as I indicated, that each party should bear their own costs in relation to that aspect of the matter.
Insofar as the second aspect of the application is concerned, it is appropriate that, as noted in the written submissions at paragraph 7 on the part of the respondent:
The respondent does not oppose costs orders in relation to the substantive review application following the event in circumstances in which the respondent's defence of that application has been substantially, though not wholly, unsuccessful. It does submit that the awarding of costs by reference to the Federal Court's scale is not appropriate in this case, and the usual approach should apply.
The usual approach, as contended by the respondent, is that an order should be made in terms of either rule 21.02 (2)(a) or (2)(b) rather than pursuant to rule 21.02(2)(c), to which I have previously referred. Rule 21.02(2)(a) and (b) is in these terms:
In making an order for costs in a proceeding, the Court may:
(a)set the amount of the costs; or
(b)set the method by which the costs are to be calculated.
It is clear from the position suggested on the part of the respondent that their proposal is a reflection is what is open to the Court, pursuant to the provisions of rule 21.02(2)(b).
The applicant's position in relation to the matter, as I have indicated, is to suggest that there are a number of factors which, ultimately, would lead to the Court finding that an order should be made, at the very least, pursuant to rule 21.02(2)(c), so as to enable the applicant to, "obtain some if its reasonable costs incurred in successfully prosecuting its case."
The arguments put on the part of the applicant in relation to that particular consideration are detailed in the submissions which have been provided. In particular, it was emphasised that consideration needs to be given to the amount of legal work properly and reasonably done in successfully prosecuting an application and, from that, assessing whether an order for costs pursuant to either the Federal Circuit Court Rules or some other means of calculation would appropriately reflect a reasonable amount, in relation to the proceedings.
I was referred to the comments of Judge Nicholls in SZRTP v Minister for Immigration & Anor [2013] FCCA 711, where at paragraph 12, his Honour said:
…I relevantly, and respectfully, draw from Oshlack [see Oshlack v Richmond River Council (1998) 193 CLR 72] that the statutory discretion relevant in these proceedings (s.79 of the Act) cannot be exercised capriciously. Rather the exercise of the discretion should be made in the context of the principles and guidelines formulated for this purpose. That is… to exercise the discretion ‘in the context of relevant rules’ means to be guided by the Rules and to act judicially. Having regard to such ‘principles and guidelines’ does not constitute a fetter on the discretion in s. 79 of the Act.
Here, there is clearly contended to have been, on the part of the applicant, significant legal work required, and I do not doubt that that has been the case.
Additionally, it is argued that because offers to settle were put in relation to the proceedings and were not taken up by the respondent when such offers were put, that the applicant incurred significant additional costs in preparing for and ultimately prosecuting the case before the Court.
With respect, I am not of the view that that would be a factor which should be considered. In any litigation, consideration is properly given to a basis upon which the litigation can be curtailed by way of agreement. Offers and counter offers are regularly exchanged, but they are, just as regularly, refused or not taken up by one party or the other, and, unfortunately, from there, the ultimate consequence is that the proceedings must proceed to the court. And, flowing from that, the legal representatives for the parties must perform further work, in order to prepare the matter, and that of course leads to additional costs being required to be incurred by one party or, in most instances, both parties, as a result of their not being able to reach agreement.
It is not, with respect, a factor which should then ultimately be determinative of whether a greater amount of costs is required to be paid than that which would simply flow from the proper consideration of the provision of the Federal Circuit Court Rules and the schedule of costs associated with that.
Additionally, the nature of the proceedings were argued by the applicant to be relevant, in relation to the matter, including the complexity of the application. My own words were plucked from the judgment previously delivered in relation to the matter, making reference to difficult and complex issues, both in terms of the facts and the law.
Certainly, there were serious issues that needed to be determined, and it was necessary for there to be a close examination, both of the evidence that was provided, and of the appropriate legal considerations to reach the findings that were required and that required the Court to perform its duties diligently and to balance all of the evidence given in relation to the proceedings. It was not however outside the scope of what the Court is required to do on a daily basis in relation to the proceedings that occur before it, and whilst there is an obligation to ensure that consideration is given to all evidence and to all legal principles that arise in relation to the matter, I am not of the view that there was such daunting complexity in relation to the proceedings that work over and above that which would be normally expected in relation to an application of this nature was required.
Similarly, evidence was required to be placed before the court by way of affidavit to establish the facts relevant to the application brought by the applicant, but nothing less would be required or expected in relation to presenting its evidence. Whether or not, as submitted, the applicant was required to undertake a review of its historical files in terms of its dealings with the respondent's representatives in the past, is a matter of little consequence in relation to these proceedings. Certainly, being able to indicate that a certain course had previously been followed in dealings between the applicant and the respondent, was persuasive in relation to the matter, but to undertake such a course of conduct in relation to such an application would be nothing more than would be expected, in relation to each and every application that is before the Court.
It is clear that proper preparation was undertaken, but it was not preparation that would have been less likely expected in relation to any other proceedings that were before the Court.
I am not satisfied, therefore, there is a proper basis upon which it could be argued that there was complexity in the proceedings greater than that which would otherwise arise. In that regard, I note the reference by the respondents to the decisions of Riethmuller FM, as he then was, in BC Galleries (Vic) Pty Ltd (ACN 126 415 865) v Commonwealth of Australia [2013] FMCA 44 at paragraph 26, where his Honour summarised the position that arises in this matter as well as his own, quite accurately, when he said:
Whilst the matter raised interesting and complex legal issues to be dealt with at trial, the overall preparation of the matter was certainly not outside the nature of matters commonly coming before the Court in general federal law jurisdiction. The material filed and the number of witnesses called was modest, as were the documents involved.
I would think that that quite accurately reflects the circumstances in relation to these proceedings.
In the end, therefore, I have come to the view that whilst costs are appropriate in relation to the matter, there is nothing that arises in relation to these proceedings which would take it outside the purview of what would be a general or normal costs order, in relation to proceedings. The orders proposed by the respondent, in relation to the costs that are claimed, may not reflect in any way the actual amount that has been expended by the applicant in relation to the proceedings, but, with respect, the applicant's actual costs in relation to the proceedings may not necessarily reflect a proper order in relation to costs to be paid by the other party.
To that end, therefore, I am satisfied that the proper orders to be made in relation to the proceedings are generally a reflection of those which are sought by the respondent, and, accordingly, it is ordered in terms as noted at the commencement of these reasons.
Finally, it is noted that the applicant seeks an advocacy certificate noting the reasonableness of the applicant briefing both senior and junior counsel, in relation to the matter. The respondent concedes that certification for counsel is appropriate but that it should only be upon the basis that there be one lump-sum payment, in relation to any fees associated with the utilisation by either party of counsel.
Again, I am satisfied that that is a proper course to follow, rather than to certify, for both senior and junior counsel. Whilst it was entirely open to the applicant to appoint senior counsel, it is not, in my view, necessary that an order for costs reflect the payment of two sets of fees in relation to counsel, rather than a general view that there should be one payment for counsel, in relation to the proceedings. I am satisfied that certification should simply, therefore, be that it was appropriate to brief counsel in relation to these proceedings.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 18 June 2014
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