Oswal v ANZ Banking Group Ltd - [2016] VSC 408

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2011 4653

BETWEEN:

RADHIKA PAKAJ OSWAL	Plaintiff
v
ANZ BANKING GROUP LTD (ACN 005 357 522) & ORS	Defendants

S CI 2012 1995

PANKAJ OSWAL	Plaintiff
v
IAN MENZIES CARSON & OTHERS	Defendants

S CI 2015 00804

YARA PILBARA FERTILISERS PTY LTD (ACN 095 441 151)	Plaintiff
v
PANKAJ OSWAL & ORS (ACCORDING TO THE SCHEDULE)	Defendants

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JUDGE:	DODDS-STREETON JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Application on the papers
DATE OF JUDGMENT:	26 July 2016
CASE MAY BE CITED AS:	Oswal v ANZ Banking Group Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 408

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PRACTICE AND PROCEDURE – Application to reduce by half daily setting down and hearing fees pursuant to regs 8 and 8A of the Supreme Court (Fees) Regulations 2012 to plaintiffs in two proceedings ordered (with a third proceeding) to be managed and heard together – Whether Court empowered by reg 8, 8A, or inherent jurisdiction of the Court – Whether any such power to reduce the daily setting down and hearing fees should be exercised in the circumstances – Application refused.

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Counsel	Solicitors
For the Applicant	A J I Bannon SC P H Wallis	Watson Mangioni Lawyers Pty Ltd
For the Defendant	---	---

HER HONOUR:

The Application

Pankaj Oswal and Radhika Oswal (‘the applicants’), who are the plaintiffs in proceeding S CI 2012 1995 and S CI 2011 4653 respectively, applied by a letter of their solicitors dated 27 May 2016, pursuant to regs 8[1] and 8A[2] of the Supreme Court (Fees) Regulations 2012 (‘Fees Regulations’) or the Court’s inherent jurisdiction, for a 50 per cent reduction in their setting down and daily hearing fees.
[1]Regulation 8 pertains to hearing fees.
[2]Regulation 8A pertains to setting down fees.

The Commercial Court Registry by letters dated 17 May 2016 required each plaintiff to pay, pursuant to reg 8 of the Fees Regulations, a setting down fee incorporating a first day hearing fee and thereafter the prescribed daily fees, the amount of which varies according to the length of the trial.

The Applicants’ Submissions

The applicants submitted that the Court should reduce the fees so that, in effect, they are liable for only one setting down and daily hearing fee between them.

The application was supported by written submissions dated 1 June 2016. Counsel for the applicants declined the invitation to amplify the submissions in relation to the Court’s power to reduce setting down and daily hearing fees and whether, in this case, the imposition of the prescribed fees occasioned any material injustice.

The applicants submitted that the Court is empowered to reduce the setting down and hearing fees and should do so in this case because:

a)Three proceedings, including the plaintiffs’ proceedings and a third related proceeding, S CI 2015 804 (in which the plaintiff, Yara Pilbara Fertilisers Pty Ltd, does not apply for any reduction of the setting down and daily fee imposed on it), by the order of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 408
Decision Date: 26 July 2016

CaseChat Overview and Summary

In the Supreme Court of Victoria, the applicants, Radhika Pakaj Oswal and Pankaj Oswal, sought a reduction in their daily setting down and hearing fees in two related proceedings, S CI 2011 4653 and S CI 2012 1995, pursuant to regs 8 and 8A of the Supreme Court (Fees) Regulations 2012 or the Court’s inherent jurisdiction. The Court was required to decide whether it had the power to reduce fees under the relevant regulations or inherent jurisdiction and, if so, whether that power should be exercised in the circumstances. The Court held that it had no power to reduce the fees under the relevant regulations or inherent jurisdiction, and that there was no material injustice or significant prejudice to warrant the exercise of any such power. The applicants’ submissions did not establish that the fees exceeded the cost of providing the service, and there was no evidence of the actual costs of providing the Court resources and services necessary for the trial of the proceedings. The applicants also did not contend that they would suffer any financial hardship or that their claims would be stultified if they were required to pay the full prescribed fees. The Court was not persuaded that any power or discretion which may be conferred by reg 8 or 8A of the Fees Regulations or the inherent jurisdiction of the Court should be exercised to reduce the fees imposed on the applicants. The application was refused.

Orders