Reynolds v The Minister For Health and Anor (No.2)

[2010] FMCA 910

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REYNOLDS v THE MINISTER FOR HEALTH & ANOR (No.2) [2010] FMCA 910

PRACTICE AND PROCEDURE – Application for costs of interlocutory hearing – principles to be applied in awarding costs – advocacy loading for Counsel – whether appropriate when Counsel is employed by solicitors on the record – appropriate in the circumstances for increased amount of costs to be awarded for appearance of Counsel.

PRACTICE AND PROCEDURE – Informal application for an adjournment sine die – principles to be applied – not appropriate in the circumstances to grant an adjournment.

HUMAN RIGHTS – Alleged unlawful disability discrimination.

Disability Discrimination Act 1992 (Cth), ss.11, 21B
Federal Magistrates Act 1999 (Cth), ss.44(c), 79(2) and (3)
Federal Magistrates Court Rules 2001 (Cth), rr.21.10, 21.14, 21.16, Schedule 1 Part 1

Colan Products Pty Ltd v Luxon Pty Ltd (No.2) [2002] FMCA 90
Doukidis v Williamson (2008) 6 ABC(NS) 717; [2008] FMCA 1352
Hinchliffe v University of Sydney (No.2) [2004] FMCA 640
Latoudis v Casey (1990) 170 CLR 534
Pierson’s Pro-Health Pty Ltd v Silvex Nominees (No.3) [2010] FMCA 250
Reynolds v Minister for Health & Anor [2010] FMCA 843
Simonsen v Official Trustee in Bankruptcy [2008] FMCA 617

Applicant: BRUCE WILLIAM REYNOLDS

First Respondent: THE MINISTER FOR HEALTH

Second Respondent: ROSLYN ELMES

File Number: PEG 56 of 2010

Judgment of: Lucev FM

Hearing date: 19 November 2010

Date of Last Submission: 19 November 2010

Delivered at: Perth

Delivered on: 19 November 2010

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr B. King

Solicitors for the Respondents: State Solicitor’s Office

ORDERS

1. The applicant pay the first and second respondents’ costs in the amount of $2,785 by 3 December 2010.

2. Any application in a case by the applicant for an adjournment be filed and served, together with any affidavit in support, by 29 November 2010.

3. Any response to any application in a case by the applicant for an adjournment and any affidavit in support be filed and served by 6 December 2010.

4. The matter be adjourned to 9:00am on 7 December 2010 for hearing of any application in a case for an adjournment or for a further directions hearing as necessary.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 56 of 2010

BRUCE WILLIAM REYNOLDS

Applicant

And

THE MINISTER FOR HEALTH

First Respondent

ROSLYN ELMES

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons revised and edited from the transcript)

Introduction

1. On 5 November 2010, the Court dismissed an application in a case by the applicant under s.44(c) of the Federal Magistrates Act 1999 (Cth)[1] that Mr Paul Anthony King be granted leave to represent him in the whole proceedings, including mediation.[2]

   [1] “FM Act”.

   [2] Reynolds v Minister for Health & Anor. [2010] FMCA 843 (“Reynolds (No. 1)”).

2. The Federal Magistrates Court, in dismissing that application, provided for any costs application that ought to be made to be made and one has been made by the first and second respondents.

3. The Federal Magistrates Court has jurisdiction and discretion to award costs in all proceedings before the Court under s.79(2) and (3) of the FM Act. The general rule is that, subject to other considerations in the exercise of the Court’s discretion, the successful party should recover its costs.[3] That general rule applies in human rights proceedings in this Court. That is, human rights proceedings are in no different a position to the ordinary run of proceedings in this Court.[4] So, unless the Court otherwise orders, a party is entitled to the costs in a proceeding in accordance with Part 1 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth),[5] and the disbursements properly incurred. On the face of it, the first and second respondents are entitled to their costs in these proceedings.[6]

   [3] Latoudis v Casey (1990) 170 CLR 534 at 566 and 567 per McHugh J.

   [4] Hinchliffe v University of Sydney (No. 2) [2004] FMCA 640 at para.10 per Driver FM.

   [5] “FMC Rules”.

   [6] FMC Rules, r.21.10; Pierson’s Pro-Health Pty Ltd v Silvex Nominees (No. 3) [2010] FMCA 250 at paras.41(a) and 43 per Lucev FM.

4. The applicant has filed submissions on costs in respect of this matter but has not appeared today to argue those submissions. Nevertheless, the Court takes them into account. In part, as Counsel for the first and second respondents said this morning, they seek to re-agitate or argue with the matters already determined in the earlier judgment in Reynolds (No.1).

5. The applicant complains that he was denied procedural fairness and the opportunity to call oral evidence at the hearing. The complaint is not justified and cannot be made out for reasons set out in Reynolds (No.1), as follows:

   108.     In the course of the hearing of the application in a case Mr Reynolds said that he wished to raise a matter of procedural fairness and natural justice. Mr Reynolds said that at the first directions hearing when orders were made for the filing of affidavits in support of the application in a case it was understood that those affidavits would be able to be expanded on by way of oral evidence. When it was put to Mr Reynolds that:

   a)        that was not the Court’s understanding;

   b)that was an unusual occurrence in an application in a case; and

   c)he had said at the outset of the hearing of the application in a case that no further evidence apart from the affidavit evidence of Mr King and himself was to be led,

   the matter was not pursued.

   109.     Procedural fairness is the opportunity to adequately and properly present a case. In this case that opportunity was afforded to Mr Reynolds by the Court providing for the filing of affidavit evidence (which the respondents did not cross-examine on) and the ability to make submissions in relation to that evidence and the matter generally. In the Court’s view, the complaint (if indeed it be that) concerning procedural fairness has no substance.[7]

   [7] Reynolds (No. 1) at paras.108-109 per Lucev FM, with footnotes from the original text omitted.

6. The applicant also complains that he was denied the opportunity to call further evidence about the complaint concerning alleged victimisation of the applicant by Ms Elmes. In addition to what’s been said above concerning procedural fairness, the Court notes that it specifically addressed the alleged victimisation issue in Reynolds (No.1). In respect of that issue, however, the Court made findings which were not adverse to the applicant’s case and rejected the respondent’s submissions on that point.[8]

   [8] Reynolds (No. 1) at paras.29-32 and in particular paras.31 and 32 per Lucev FM.

7. The applicant also complains that the Court in Reynolds (No.1) criticised Mr King for relying in the application to the Court on s.11 of the Disability Discrimination Act 1992 (Cth),[9] which the Court found to be a defence under s.21B of the DD Act.[10] The applicant now says, unsupported by any evidence to support it, that s.11 was included in the complaint at the suggestion of the Australian Human Rights Commission. The Court notes that there was no evidence of that allegation at the time of the hearing of the application in a case either. However, even if the assertion is correct, it does not assist the applicant, because in addition to what was said concerning the issue in Reynolds (No.1) at paras.36 to 38, it exhibits a lack of the necessary independent judgment and objectivity which the Court would expect from an advocate, be they a lawyer or non-lawyer, in the proceedings.

   [9] “DD Act”.

   [10] Reynolds (No. 1) at para.36 per Lucev FM.

8. The applicant also complains that Mr King was not allowed to give evidence about his “settlement” achievements in proceedings before Fair Work Australia and the Western Australian Industrial Relations Commission. Again, the Court repeats its observations set out above, and in particular what was said in Reynolds (No.1) that:

   “he [the applicant] had said at the outset of the hearing of the application in a case that no further evidence apart from the affidavit evidence of Mr King and himself was to be led.”[11]

   [11] Reynolds (No. 1) at para.108(c) per Lucev FM; Transcript at pages 2 and 3.

9. Paragraph 20 of the applicant’s written submissions with respect to costs are as follows:

   In October 2010 in a matter before Federal Magistrate Lucev, being PEG 169/2010 his Honour made comment about King when the applicant stated she was to seek leave to have King represent her. The representative in that case for the respondent was not a barrister or lawyer he, Mr McCorry was an Industrial Agent like King yet the court made no inquiry as to his qualifications and allowed him to appear for the respondent. This matter was also settled with King negotiating for the applicant.

10. That statement is, as a matter of fact, incorrect. The Court has this morning checked the file for the matter. The respondent was in fact represented by Mr R.E. Lindsay. Mr Lindsay is known to the Court. He is known to the Court to be of Counsel. The Court has independently checked the Western Australian Bar Association website which indicates that he still is a member of that Association, practising as Counsel from chambers.[12]

    [12] >

    The applicant has not made out any of the complaints or submissions on which he relies in respect of costs. On that basis, the applicant’s submission that there ought be no order as to costs cannot be accepted, and the Court finds that there is no basis for this displacement of the usual rule as to costs.

11. There is a suggestion in the submissions that costs ought to be reserved or costs ought to be in the cause but as Counsel for the respondents has rightly indicated to the Court this morning, this was a discrete application and there being no basis not to follow the ordinary rule with respect to costs, it follows that the first and second respondents ought to have their costs of these proceedings.

12. The first and second respondents have submitted that r.21.16 of the FMC Rules provides that if the Court certifies that employment of an advocate is reasonable the amount payable for Counsel to appear is the daily hearing fee and advocacy loading in accordance with Part 1 of Schedule 1 of the FMC Rules.

13. The respondents contend, at least initially, that they were represented by Counsel at the hearing and that the application involved questions of fact and law which were sufficiently complex to warrant the use of Counsel and that they therefore ought to be entitled to the advocacy loading.

14. The Court notes, and has confirmed with Counsel for the respondents this morning, that he is in fact employed by the State Solicitor’s Office who are the solicitors on the record. Counsel, as used in r.21.10 of the FMC Rules has been held not to include an advocate from the firm who are instructing solicitors.[13] There is no reason that in this case the State Solicitor’s Office should stand in a different position to a private firm of solicitors. The fact that there is a fused profession in Western Australia makes no difference. Rule 21.10 of the FMC Rules is, in the Court’s view, directed towards the cost of independent Counsel.

    [13] Colan Products Pty Ltd v Luxon Pty Ltd (No. 2) [2002] FMCA 90 at para.13 per Raphael FM.

15. At the hearing today, Counsel for the respondents referred the Court to r.21.14 of the FMC Rules, which relevantly provides as follows:

    (1)      If a solicitor appeared for a party on a hearing alone or instructed by another solicitor who is a member of the same firm, the amount to which the party is entitled for the hearing is limited to:

    (a)      150% of the daily hearing fee for 1 solicitor; and

    (b)      a fee for preparation.

16. Counsel for the respondents submitted to the Court that he is admitted as a barrister, solicitor, attorney and proctor in the State of Western Australia, and that he is Senior Assistant State Counsel for the State Solicitor’s Office. The Court also notes that Counsel is a practitioner of close to 20 years standing. In these circumstances, taken together with the relative length and complexity of the matter, reflected in the judgment in Reynolds (No.1), it is appropriate that the provisions of r.21.14(1)(a) of the FMC Rules ought to apply. Therefore, the respondents’ costs of the application under Stage 2 of Part 1 of Schedule 1 of the FMC Rules are:

    Lump sum: $1,465

    Daily hearing fee: $1,320

    Total: $2,785

17. The Court will order that the applicant pay the first and second respondents’ costs in the amount of $2,785 by 3 December 2010.

18. There was a suggestion in the applicant’s submissions on costs that there be an adjournment of this matter sine die in order that a WAIRC application could be heard and determined in relation to a performance issue associated with the factual content of these proceedings. Adjournments are not readily granted in this Court.[14] If an adjournment application is properly made then the Court will hear and determine it.

    [14] Simonsen v Official Trustee in Bankruptcy [2008] FMCA 617 at para.7 per Lucev FM; Doukidis v Williamson (2008) 6 ABC (NS) 717 at 728-729 per Lucev FM; [2008] FMCA 1352 at paras.51-52 per Lucev FM.

19. The Court will make orders that any application in a case by the applicant for an adjournment be filed and served, together with any affidavit in support, by 29 November 2010. A further order that any response to any application in a case by the applicant for an adjournment and any affidavit in support be filed and served by 6 December 2010 will be made. The Court will also order that the matter be adjourned to 9:00am on 7 December 2010 for hearing of any application in a case for an adjournment or for a further directions hearing as necessary.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  25 November 2010