Penhall-Jones v State of New South Wales (No.3) - [2006] FMCA 1272

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PENHALL-JONES v STATE OF NEW SOUTH WALES (No.3)

[2006] FMCA 1272

HUMAN RIGHTS – COSTS – Assessment of costs following dismissal of principal application.

Federal Magistrates Court Rules 2001 (Cth)

Penhall-Jones v State of New South Wales (No.2) [2006] FMCA 927

Applicant:

MARGARET LEILA PENHALL-JONES

Respondent:

STATE OF NEW SOUTH WALES

File Number:

SYG3013 of 2005

Judgment of:

Driver FM

Hearing date:

30 August 2006

Delivered at:

Sydney

Delivered on:

30 August 2006

REPRESENTATION

The Applicant filed written submissions

Solicitors for the Respondent:

Mr S Burke
Abbott Tout Lawyers

ORDERS

The applicant, Ms Penhall-Jones, pay the costs and disbursements of the respondent, State of New South Wales, of and incidental to matter SYG3013 of 2005, including any reserved costs, fixed in the amount of $24,140.
There be no order as to costs in relation to today’s costs hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3013 of 2005

MARGARET LEILA PENHALL-JONES

Applicant

And

STATE OF NEW SOUTH WALES

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application for costs by the respondent in the principal proceedings in this matter, that application being filed on 25 August 2006. The costs application is consequent upon my judgment in the principal proceedings given on 31 July 2006[1]. In my principal judgment, I said that I would hear the parties as to costs. It was not practicable to take cost submissions on that day and hence the matter was listed for hearing on that and other issues today. As matters have transpired, the only issue requiring to be dealt with today was the issue of costs.
[1] Penhall-Jones v State of New South Wales (No 2) [2006] FMCA 927
The State of New South Wales’ costs application is supported by the affidavit of Seamus John Burke filed on 25 August 2006. That provides evidence of the work undertaken by the respondent in the principal proceedings and details the cost claim of the respondent by reference to the scale of costs in the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I also received as an exhibit[2] a document detailing the photocopying work undertaken by the respondent’s solicitors.
[2] exhibit C1
Ms Penhall-Jones did not appear for today’s costs hearing. She contacted my chambers and advised that she had a commitment in relation to a workers compensation claim she has made and that she hence would be unable to attend. My associate left Ms Penhall-Jones a message that she would be excused from attending today provided that she filed written submissions, which she did on 28 August 2006.
In those submissions Ms Penhall-Jones presses for a costs order of no more than $13,767 against her, taking into account a set off she claims as a result of her success in an interlocutory appeal to the Federal Court and her arguments about the conduct of the proceedings. Ms Penhall‑Jones will be able to set off against whatever costs order I make, any costs order made in her favour against the State of New South Wales. That is not a reason for me to reduce a costs award in anticipation of such a set off being claimed. The respondent, on the other hand, seeks a costs order of $25,435 plus additional costs of $2,812 by reference to the Federal Magistrates Court scale of costs. Both parties appear to agree that the Federal Magistrates Court scale should apply. So do I. There is no reason in this case, despite its length and complexity, to depart from the established Court scale.
Ms Penhall-Jones seeks reduction in costs by reference to complaints she has about the manner in which the proceedings were conducted by the State. I do not accept those submissions. In particular, I reject the submissions that costs should be reduced because of the time taken to deal with the respondent’s claim of privilege over certain documents, and the time taken in dealing with the evidence of Ms Reilly. The proceedings were quite complicated and reasonably lengthy, especially at the interlocutory stage. The proceedings involved serious issues that were hard fought but fairly fought between the parties. I do not accept that the State has conducted itself in a manner which should disentitle it from recovering the costs that it would expect to receive pursuant to the Federal Magistrates Court scale. Neither do I accept that Ms Penhall-Jones should escape a costs order because of her personal circumstances, or because of the asserted public interest element in her case. Costs should follow the event, in accordance with general principles.
I have decided that the proceedings should be considered globally by reference to the Court scale rather than divided into parts. Pursuant to the scale the State will receive stage-one costs up to 16 November 2005 of $2,005 plus $205 hearing fee for a short mention. I ordered that the matter be listed for hearing over three days and it was heard over three days. The State should receive stage-five costs under the scale for preparing for a three-day hearing of $8,195. The State should also receive stage 6 costs for the three-day hearing of $4,500 for the solicitor’s costs.
In addition, I am satisfied that it was reasonable for the State to be represented by counsel for the three-day trial of the matter and for the purposes of rule 21.15 of the Federal Magistrates Court Rules I so certify. The State will receive an advocacy loading of $6,750 for the three-day trial. In addition, the State will receive a hearing fee of $205 for attending to receive and explain the judgment. This produces a subtotal in respect of costs of $21,860.
The State claims disbursements of $2,280 for photocopying at 57 cents a page. Initially, I found this astounding on the basis that the Court’s own documents in respect of this case would not exceed one thousand pages. However, after having been taken through exhibit C1 by Mr Burke, who appeared today for the State, I accept that the claim in respect of photocopying is justified and represents only a portion, albeit a substantial one, of the photocopying work undertaken by the State’s solicitors. I accept the claim for disbursements which is an amount of $2,280.
Rather than leave the matter there, in order to remove the opportunity for further disputation between the parties as to costs in this Court, I consider that it would be appropriate for the Court to exercise its power pursuant to rule 21.02(2)(a) to set the amount of costs. I will therefore order that the applicant, Ms Penhall-Jones, pay the costs of the respondent State of and incidental to matter number SYG3013 of 2005 fixed in the amount of $24,140.
I have considered whether an additional order should be made in respect of today’s costs hearing. I have decided that there should be no additional order. It proved not to be practicable to take submissions on costs on the day that my principal judgment was handed down.
Ms Penhall-Jones has wisely not sought to oppose a costs order in principle but has exercised her right to make submissions as to the amount of costs that should be awarded. Her written submissions are detailed but that may reflect her inability to attend in person today.
I will order that there be no order as to costs in relation to today’s costs hearing.
Ms Penhall-Jones has sought a stay of recovery of any costs, noting that my principal judgment is subject to appeal. I understand that she has made a similar application in the Federal Court. I am not minded to grant a stay of the costs order that I have made. Ms Penhall-Jones has the right to appeal against that costs order and to seek consolidation of any such appeal with her appeal against my principal judgment.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date:11 September 2006