OGAWA v University of Melbourne (No.2)

[2005] FMCA 1216

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OGAWA v UNIVERSITY OF MELBOURNE (No.2) [2005] FMCA 1216

PRACTICE & PROCEDURE – Trade practices – costs – setting amount of costs.

Federal Magistrates Rules 2001

Applicant: MEGUMI OGAWA

Respondent: UNIVERSITY OF MELBOURNE

File Number: MLG 463 of 2004

Judgment of: Phipps FM

Hearing date: 18 August 2005

Delivered at: Melbourne

Delivered on: 18 August 2005

REPRESENTATION

No appearance for the Applicant

Counsel for the Respondent: Mr C.M. Caleo

Solicitors for the Respondent: Minter Ellison

ORDERS

1. That the applicant pay the respondent's costs fixed at $58,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 463 of 2004

MEGUMI OGAWA

Applicant

And

UNIVERSITY OF MELBOURNE

Respondent

REASONS FOR JUDGMENT

1. I gave judgment in this matter on 8 August 2005 in which I dismissed the application which had been filed by the applicant in the Federal Court and transferred to this Court in May 2004.  I adjourned the matter to today on the question of costs and I ordered that the respondent file and serve a calculation of the costs it seeks by 4.00pm on Monday 15 August 2005, including costs of and relating to the hearing on 18 August 2005 on an indemnity basis.

2. Costs are dealt with in schedule 1 of the Federal Magistrates Rules 2001 and in r.21.  Rule 21.02(2) provides:

   In making an order for costs in a proceeding the court may:

   (a) set the amount of costs; or

   (b) set the amount by which the costs are to be calculated; or

   (c) refer the costs for taxation.

3. I propose to set the amount of costs.  Given the history of this litigation it would seem undesirable, from either party's point of view, that there be an order for taxation of the costs that would result in further expense and delay. 

4. The applicant was sent a copy of the order of 18 August 2005 and a copy of the settled reasons.  As was done for the hearing on 18 August 2005, my associate sent an email to the applicant earlier this week asking if she wished arrangements to be made for an audio or video-link for the purpose of the hearing.  She responded that she would not be appearing, although the response I saw said that she would appear if she was directed to do so.  It is not the Court's task to direct a party to appear.  The proceeding is listed today for consideration of the question of costs and it is for the applicant to decide whether she wishes to appear or not.

5. The calculation of costs which has been filed, deals with costs on the basis of the lump sum amounts from schedule 1.  Most of them need no comment.  The stage 5 preparation for final hearing is set out on an indemnity basis.  That comes to a total of $30,994.00.  The amount is described in this way:

   $7,067.00 (representing 34 per cent of the total costs incurred in June 2005)

   $18,187.00 (representing 90 per cent of the total costs incurred in July 2005)

   $5,740.00 (representing 50 per cent of the total costs incurred in August 2005)

6. An alternative way of looking at those costs using the scale is this:  the matter was originally fixed as a seven-day hearing.  When it was fixed for hearing, Mr Caleo, appearing for the respondent, informed me that his estimate was of a 14 day hearing.  Particularly given the nature of the unconscionable conduct representation, there could be a significant amount of evidence about conversations.  Although I only fixed it for a seven-day hearing at that point, I accept that a reasonable estimate was 14 days.  Applying schedule 1, stage 5 for preparation that would be an amount of $6,145.00 for the first two days and then a further 12 days at $1,295.00 each - $15,540.  That comes to a total of $21,685.00.

7. Given the nature of this case it would be reasonable, for a variety of reasons, to add a loading to that amount.  One approach would be to say that because I have ordered that the costs relating to the final hearing or the day of the final hearing be on an indemnity basis, a 50 per cent loading can be added.  That brings the total to $32,275.00 which is over $30,994.00 which is claimed.  The balance of the hearing costs are counsel's fees for preparation and settling of an affidavit and an appearance fee.  Solicitor instructing is $750.00.

8. The total sought is $56,319.00.  That does not include the cost of preparation of the calculation of costs and of today’s hearing.  I will increase the amount to $58,000.00 to allow for these costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: 

Date: