Prins v News Corp Australia Pty Ltd & Ors (No.2)
[2019] FCCA 2655
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRINS v NEWS CORP AUSTRALIA PTY LTD & ORS (No.2) | [2019] FCCA 2655 |
| Catchwords: HUMAN RIGHTS – COSTS – application pursuant to Australian Human Rights Commissions Act 1986 – whether costs should follow the event – where costs should follow the event – costs assessed. |
| Legislation: Australian Human Rights Commissions Act 1986 (Cth) Federal Circuit Court of Australia Act 1999 (Cth) s.79 Federal Circuit Court Rules 2001 (Cth) rr.21.02(1)(b), 21.02(2), 21.03, 21.04, 21.10, 21.15, schedule 1 |
| Cases cited: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Hinchliffe v University of Sydney [2004] FMCA 640 Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84 Maxton & Maxton Pty Ltd v Port Village Accommodation Pty Ltd (No.2) [2012] FMCA 359 Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250 Prins v News Corp Australia Pty Ltd & Ors [2018] FCCA 3597 |
| Applicant: | SOKHOM PRINS |
| First Respondent: | NEWS CORP AUSTRALIA PTY LTD |
| Second Respondent: | NATIONWIDE NEWS |
| Third Respondent: | THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN |
| Fourth Respondent: | CHRIS MERRITT |
| Fifth Respondent: | HEDLEY THOMAS |
| Sixth Respondent: | JANET ALBRECHTSEN |
| File Number: | BRG 847 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | by written submission |
| Date of Last Submission: | 18 August 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Dr H. Prins appeared for the applicant pursuant to s.46PQ(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) |
| Solicitors for the Respondents: | M&K Lawyers Group Pty Ltd |
ORDERS
Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the respondents to employ an advocate in the conduct of this proceeding.
The applicant pay the respondents’ costs of the proceeding fixed in the sum of $8,365.50, payable to the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 847 of 2017
| SOKHAM PRINS |
Applicant
And
| NEWS CORP AUSTRALIA PTY LTD |
First Respondent
| NATIONWIDE NEWS |
Second Respondent
| THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN |
Third Respondent
| CHRIS MERRITT |
Fourth Respondent
| HEDLEY THOMAS |
Fifth Respondent
| JANET ALBRECHTSEN |
Sixth Respondent
REASONS FOR JUDGMENT
On 6 December, 2018 I made an order summarily dismissing the applicant’s proceedings against each of the respondents (Prins v News Corp Australia Pty Ltd & Ors [2018] FCCA 3597). The respondents seek their costs of the proceedings in a fixed sum. The applicant opposes any order for costs, or alternatively, asks that the Court make an order:
a)for costs fixed in a sum less than that claimed by the respondents; or
b)that costs be costs in the cause.
The applicant’s proceeding was for damages for contraventions of the Racial Discrimination Act 1975 (Cth). The proceeding was brought pursuant to the provisions of the Australian Human Rights Commission Act 1986 (Cth). Nothing in those Acts curtails or qualifies the Court’s power to make an order for costs in proceedings under those Acts. Thus, the general costs power set out in s.79 of the Federal Circuit Court of Australia Act 1999 remains available to the court.
The Court’s power to make an order for costs is discretionary. The discretion is absolute and unfettered but it must be exercised judicially: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400.
If the Court determines that an order for costs is appropriate, the Court may set the amount of the costs, the method by which the costs are to be calculated, refer the costs for taxation or set a time for payment of the costs: rule 21.02(2) of the Federal Circuit Court Rules 2001 (Cth). However, the starting point is that ordinarily costs, if they are to be awarded, will be assessed according to the event based scale set out in Part 1 of Schedule 1 to the FCCR: FCCR 21.10, Hinchliffe v University of Sydney [2004] FMCA 640 at [10]; Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250 at [43]; applied in Maxton & Maxton Pty Ltd v Port Village Accommodation Pty Ltd (No.2) [2012] FMCA 359.
The general rule in litigation of the nature presently under consideration is that costs ought follow the event unless there are circumstances present which warrant a departure from that approach: Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84 at [58] and [59]. Reserved costs too, follow the event: rule 21.04 Federal Circuit Court Rules 2001 (Cth).
The applicant does not seem to cavil with the proposition that there should be an order as to costs. Her argument is directed to the amount of the costs – she argues that the amount awarded should be discounted for matters to which I come shortly. Alternatively, she says, costs should be “in the cause”.
An order for costs to be in the cause is inappropriate because the cause has come to an end. Where proceedings have been finalised, as these have been by my order of 6 December, 2018 there is no room for the operation of an order that costs be in the cause or that one party’s costs be in the cause.
The issue identified by the parties’ written submissions, then, is the amount of the costs order that should be made.
The respondents seek costs in accordance with Parts 1 and 2 of schedule 1 of the FCCR. They do not seek that their costs be assessed or taxed on any other basis. They seek certification that it was reasonable for a party to employ an advocate to appear for a party in a proceeding (rule 21.15 FCCR). The amount they seek is as follows:
Item 1
Opposing an application up to the completion of the first court date, Item 1 of Schedule 1, Part 1 of the Federal Circuit Court Rules 2001 (Cth)
Item 1 provides that opposing application fee and daily hearing fee may be claimed.
First court date was on 4 December 2017.
$2,992.00
Item 1
Daily hearing fee - Opposing an application up to the completion of the first court date, Item 13 of Schedule 1, Part 1 of the Federal Circuit Court Rules 2001 (Cth). Short mention fee only.
Item 1 provides that opposing application fee and daily hearing fee may be claimed.
Directions on 4 December 2017 (approximately half day hearing).
$1,120.00
Item 3
Summary hearing - Item 3 of Schedule 1, Part 1 of the Federal Circuit Court Rules 2001 (Cth).
Item 3 provides that both summary hearing fee and daily hearing fee may be claimed.
Full day hearing of summary judgment application on 27 March 2018.
$1,867.00
Item 3
Daily hearing fee - Item 3 of Schedule 1, Part 1 of the Federal Circuit Court Rules 2001 (Cth).
Item 3 provides that both summary hearing fee and daily hearing fee may be claimed.
Full day hearing of summary judgment application on 27 March 2018.
$2,241.00
Item 12
Advocacy loading – Item 12 of Schedule 1, Part 1 of the Federal Circuit Court Rules 2001 (Cth). Applies 50% loading on Daily hearing fee applied in Item 3.
Renee Enbom of counsel appeared. This item is subject to Court providing advocacy certificate under rule 21.15.
$1,120.50
Item 14
Disbursements – Bill of Costs
$445.00
TOTAL
$9,785.50
At the outset, it necessary to observe that the amounts claimed by the respondents are amounts provided for in schedule 1 to the Rules presently. At the time the application was argued, the scale of costs was different. Two amendments increased the costs: the first with effect from 2 November, 2017 and the second from 4 August, 2018.
Costs according to the schedule 1 should be assessed at the rate that applied when the relevant work was carried out. In this case, that means that the relevant scale is that which applied as at 28 March, 2018.
The respondents seek certification that it was reasonable to employ an advocate in defending the applicant’s claim. In my view I should so certify. The applicant’s case was characterised by voluminous material and prolix and convoluted argument and submission. Instructing counsel was entirely appropriate in the circumstances. It had the added benefit of permitting a single appearance on behalf of all of the respondents.
I have set out the costs claimed by the respondents above.
The applicant argues that I ought to engage with FCCR 21.10 and order that costs be “in the cause”. Leaving aside the appropriateness of an order that costs be in the cause at this point of the case as I have discussed briefly above, the argument is, nonetheless, misconceived. The reference to FCCR 21.10 is inapt. That rule deals with the basis upon which costs might be calculated if one or other of the parties is to be the recipient of a costs order. It is directed to the method by which the costs awarded might be quantified. It is not directed to the ultimate incidence of costs upon the completion of proceedings.
As to the quantification of costs, as I have pointed out above, the default position is calculation pursuant to schedule 1 and 2 of the FCCR, but that might be displaced if the Court “otherwise orders”. The respondents do not seek that the Court “otherwise orders”.
The applicant also refers to FCCR 21.03 to support her argument that the quantum of the costs awarded should be “discounted”. But that reference too, is inapt because FCCR 21.03 deals with the power of the court to vary a determination already made by the Court specifying the maximum costs that may be recovered on a party and party basis. It has no application in the present circumstances.
The applicant argues that the costs ought to be discounted because of the respondents’ deceptive behaviour in misleading me into not considering part of her claim in its entirety. I do not accept that the respondents engaged in the misleading behaviour as alleged. Nor do I consider that I was in fact misled by the respondents in connection with the summary dismissal application.
The applicant develops her argument by a detailed consideration of part of my reasons for judgment and an explanation as to how those reasons demonstrate that I was misled by the respondents’ argument. In my view, these are matters for an appeal, not an argument about the assessment of costs to be ordered, such as the present. They have no work to do with respect to the quantification of the respondents’ costs of the proceedings.
The applicant claims that I should discount the respondents’ costs to take account of the respondents’ non-compliance with an order I made on 6 October, 2017 to file their summary judgment application by a specified date. The application was filed some 20 days after the date I had specified in my order. But I do not think that disqualifies the respondents from an order for their costs of the proceedings or that it should operate as a discount on the quantum of those costs. Notwithstanding the applicant’s submissions to the contrary, it is difficult to see how that late filing prejudiced the applicant because the summary dismissal application was never to be heard on 6 December, 2017 and was in fact heard more than three months later on 28 March, 2018.
The applicant also argues that the quantum of the costs should be reduced for another reason. It is best to set out the argument in full (errors in the original):
e. The judgement on 6 December, 2018, concluded with his Honour stating that "I will hear the parties as to costs". But nothing was heard from the respondents. This breaches rule 21.02(1)(b), which requires an application for costs to be made within 28 days of an order. Therefore the Court was forced to ask the respondents on 11 February 2019 (over 2 months after the dismissal order), if they intend making an application for costs! Why wait over 2 months to claim costs? This wasted Court time and caused the applicant unnecessary anxiety and put improper pressure on her. On 15 February 2019 the respondents finally said they would apply for costs, and implemented this on 14 March 2019. The applicant was given 21 days to respond. This was extended to 21 August 2019, due to the medical condition of her representative.
There is nothing in this argument. There was an application on foot for costs as part of the respondents’ summary dismissal application that formed part of their response filed on 23 November, 2017. That costs application remained extant after the summary dismissal of the applicant’s proceeding. Rule 21.02(1)(b) FCCR is of no relevance in the circumstances.
Moreover, I have heard each party as to costs. The applicant has filed submissions on costs as have the respondents (jointly).
I accept that the actual costs incurred by the respondents is likely to be much higher than the amount claimed by the respondents or as assessed by me pursuant to FCCR schedule 1. I accept that the conduct of this proceeding by the applicant and her representative is such that it is likely that the respondents have incurred costs beyond those that would usually be expected in a proceeding conducted in an efficient fashion with an eye to the issues in the case.
There was a large volume of material relied upon by the applicant for the purposes of the summary dismissal application, much of which was irrelevant. That too, I have no doubt, would have added to the costs burden of the case upon the respondents.
An award of costs in a sum properly calculated according to schedule 1 of the FCCR will fall significantly short of providing the respondent with recompense for their costs of these proceedings. I accept the respondents’ submissions that the costs sought by the respondents in this matter is modest in the circumstances. It is, by its very nature, already a significant discount on the costs that are likely to have been incurred by the respondents in the proceedings.
The applicant seeks time to pay any amount ordered by the Court. She seeks that payment be allowed by instalments over six or twelve months “or such other plan, in the discretion of his Honour”. No basis for such an order is demonstrated in the submissions before me. I reject the applicant’s application in that regard. Similarly, the respondents seek the imposition of a time frame for the payment of the costs, but no argument is advanced in support of that. There is no reason why the usual position that applies when the order is silent as to the time of payment should not apply.
The applicant should pay the respondents’ costs of the proceedings. Those costs should be assessed according to FCCR schedule 1. I assess those costs as follows:
4 December, 2017
Item 1 - Opposing an application up to the completion of the first court date
$ 2,936.00
Daily hearing fee Short mention fee only
$ 299.00
27 March, 2018
Item 3 Summary hearing
$ 1,832.00
Daily hearing fee plus advocacy loading
$ 3,298.50
TOTAL
$8,365.50
I accept the applicant’s argument that the hearing fee for 4 December, 2017 should be assessed as a short mention fee only. The time taken up on that day was very short. However, I am of the view that the respondents’ claim for a half day hearing fee for 27 March, 2018 is appropriate. The usual court day is of five hours duration or thereabouts. On the applicant’s submissions, the hearing of the summary judgment application took a few minutes more than two hours. Taking into account the preparation that would have been necessary for the application and the other matters I have already mentioned, the claim for a half day hearing fee is not out of order.
I have not permitted the disbursement claimed by the respondents for the preparation of the bill of costs. No evidence is before me to support that disbursement. I assume that it is a fee paid to a person external to the respondents’ solicitors who prepared the “short form bill of costs” filed on 28 March, 2019. Having regard to FCCR schedule 1 and the 16 items set out therein, I do not understand why it would be necessary for the costs payable under schedule 1 (only four substantive items are claimed) to be the subject of external assessment and the preparation of a “short form bill”. It is simply an unnecessary expense that the applicant should not have to bear.
In the circumstances, the orders shall be as set out at the commencement of these reasons.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 20 September, 2019.
Associate:
Date: 20 September, 2019
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