Perananthasivam v Telstra Corporation Ltd
[2007] FMCA 1378
•10 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PERANANTHASIVAM v TELSTRA CORPORATION LTD (No 3) | [2007] FMCA 1378 |
| COSTS – Applicant taken to be responsible for costs incurred in summary dismissal sought by the respondent, notwithstanding partial success. |
| Federal Magistrates Court Rules 2001 (Cth) Human Rights and Equal Opportunity Commission Act 1986 (Cth) |
| Perananthasivam v Telstra Corporation [2007] FMCA 1261 Perananthasivam v Telstra Corporation(No 2) [2007] FMCA 1274 |
| Applicant: | SIVANADIAN PERANANTHASIVAM |
| Respondent: | TELSTRA CORPORATION LTD |
| File Number: | SYG1602 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 10 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2007 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr B Shields |
| Solicitors for the Respondent: | Deacons |
INTERLOCUTORY ORDERS
The applicant pay the respondent's costs and disbursements of the summary dismissal application, fixed in the amount of $10,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1602 of 2007
| SIVANADIAN PERANANTHASIVAM |
Applicant
And
| TELSTRA CORPORATION LTD |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This matter comes before me today in consequence of my decision in Perananthasivam v Telstra CorporationLtd (No 2) [2007] FMCA 1274. In para.38 of that judgment, in which I dealt with a response seeking summary dismissal of an application under the Human Rights and Equal Opportunity Commission Act 1986 (Cth),
I said that I had decided that the applicant in the substantive proceedings should pay the costs of the interlocutory hearing on the response. The parties asked me to defer making a decision on the quantification of the costs until today, which I acceded to.
The applicant sought an adjournment of today's hearing so that he could seek legal advice. He also sought to dispute, again, the proposition that he should bear the costs of the hearing on the response. I declined the adjournment on the basis that I had deferred the decision of quantification until today to allow the parties to consider their respective positions and that sufficient time had been allowed.
Telstra's actual costs incurred on the hearing of the response are approximately $21,000. That is a solicitor and own client estimate. On a party and party basis I would accept that costs of not less than $10,000 have been reasonably and properly incurred on behalf of Telstra in dealing with the hearing of their response.
In Perananthasivam v Telstra Corporation Ltd [2007] FMCA 1261 in which I dealt with an application in a case made by Mr Perananthasivam I awarded costs of $5,000 to Telstra. That matter was heard concurrently with the hearing of the issues raised in the response. That hearing took twice as long as the hearing on the response and involved at least twice as much material. It was, in substance, twice as complex.
If the Court scale were to be applied, costs would be substantially less. Hearing of the issues on the response was an interim or summary hearing as a discrete event pursuant to stage two of the costs regime in schedule 1 to the Federal Magistrates Court Rules 2001 (Cth). Telstra would, on application of the scale, be entitled to a lump sum of $1,250 plus a daily hearing fee for a full day's hearing of $1,500. In addition, I would have given a certificate for the attendance of counsel and allowed 150 per cent of the daily hearing fee for counsel, providing a further $2,250. Approximately $170 had been incurred in disbursements with the result that the application of the scale would produce a costs outcome of approximately $5,170.
Given that the party/party costs of Telstra are approximately double that amount and that those costs have been reasonably and properly incurred, I do not think that the scale produces a just result in this instance. Mr Perananthasivam would of course prefer to pay a lesser amount but I do not depart from the views that I expressed in my judgment on the issues concerning summary dismissal raised by the response and the consequences in relation to costs.
I will order that the applicant pay the respondent's costs and disbursements of the summary dismissal hearing arising from the respondent's response dealt with on 1 and 2 August 2007 the subject of the decision in Perananthasivam v Telstra Corporation(No 2) [2007] FMCA 1274 fixed in the amount of $10,000.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 August 2007
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