Rowe v Emmanuel COLLEGE (No.3)

[2013] FCCA 1113

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROWE v EMMANUEL COLLEGE (No.3) [2013] FCCA 1113

Catchwords:
PRACTICE AND PROCEDURE – Costs – whether usual rule that costs should follow the event should be departed from – costs should follow the event.

Legislation:

Federal Circuit Court of Australia Act 1999, s.79
Federal Circuit Court Rules 2001, part 21

Hughes v Western Australia Cricket Association (1986) ATPR 40-748

Applicant: CHAD EVERETT ROWE

Respondent: EMMANUEL COLLEGE

File Number: BRG 208 of 2013

Judgment of: Judge Jarrett

Hearing date: 7 August 2013

Date of Last Submission: 7 August 2013

Delivered at: Brisbane

Delivered on: 7 August 2013

REPRESENTATION

The Applicant appeared on his own behalf

Counsel for the Respondent: Mr Morris of Queen’s Counsel

Solicitors for the Respondent: Corney & Lind Lawyers

ORDERS

1. Order 2 of the orders made on 15 April 2013 be discharged.

2. The applicant pay the respondent’s costs of and incidental to the proceedings, including this application, fixed in the sum of $29,988.49.

3. Otherwise, all outstanding applications and responses be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 208 of 2013

CHAD EVERETT ROWE

Applicant

And

EMANNUEL COLLEGE

Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application for costs.  There are two aspects to it.  On 15 April, I determined a summary dismissal application whereby I dismissed part of the claim made by the applicant against the respondent.  In respect of that summary dismissal application I ordered that the applicant pay the respondent’s costs to be agreed between the parties or, failing agreement, to be fixed by the Court on the next Court date.  On the next Court date the fixing of the costs was adjourned.  In this application the respondent seeks that order to be discharged and otherwise taken up in the costs order that it says should now be made.

2. The second aspect to the application is an application by the respondent that the applicant pay its costs of and incidental to the application more generally.  That application has come about because after a trial of the proceedings, or what was left of the proceedings after the summary dismissal application, I dismissed the application made by the applicant in its entirety. 

3. The judgment that I gave in the summary dismissal application and the judgment that I gave following the final trial of the proceedings are both the subject of appeals, I think, to the Federal Court of Australia.  They have not yet been heard.  Nonetheless, the respondent says it is entitled to its costs.

4. This Court has power under s.79 of the Federal Circuit Court of Australia Act 1999 to make an order for costs.  By that section, and subject to presently immaterial exceptions, costs are in the discretion of the Court. 

5. Part 21 of the Federal Circuit Court Rules 2001 provides the rules that govern the making of applications for costs and the making of orders for costs. 

6. Ordinarily, costs are awarded in this Court according to schedule 1 of the Federal Circuit Court Rules 2001. That is the primary position, although the Court might order that the costs be assessed in a different way other than by reference to schedule 1 of the Rules or that they be fixed in a lump sum without reference to schedule 1 of the Rules.

7. The Rules underscore the proposition in s.79 of the Act that costs are in the discretion of the Court. The discretion is at large, but there is well worn authority that suggests that in cases like this an unsuccessful party ought to pay the successful party’s costs of the litigation. In Hughes v Western Australia Cricket Association (1986) ATPR 40-748 Toohey J suggested that:

   Ordinarily costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.

8. That short statement of principle has been applied on numerous occasions ever since.  Nothing has been brought to my attention to suggest that it should not apply in this case.  Ordinarily, costs should follow the event.  Although he does not articulate it in this way the applicant points to a number of circumstances that he argues suggest that there are some exceptional circumstances in this case which justify departing from the general rule. 

9. The first is that he is impecunious.  But impecuniosity has never been an answer to a costs order.  A successful litigant is entitled to be protected by an order for costs from an impecunious unsuccessful litigant just as much as they are entitled to be protected from an unsuccessful, but wealthy litigant.  Impecuniosity ultimately has little to do with the exercise of the relevant discretion.

10. The second point that the applicant seeks to make is he is afflicted by a medical condition which calls into question his judgment.  He might be right about that.  There is some evidence attached to his affidavit that suggests that he has been diagnosed with a psychiatric condition, but he does not suggest that he does not understand the nature of these proceedings.  He does not suggest that he is unable to properly represent himself and he does not come to the Court seeking, for example, the appointment of a litigation guardian to assist him with the conduct of these proceedings.  It seems to me that even if he is afflicted by a medical condition, as he suggests, it is something which is, quite frankly, neither here nor there.

11. There are some other things that the applicant says that might fall into the category of special circumstances sufficient to depart from the general rule.  One of them is that the judgment that I gave in this Court is not likely to survive an appeal.  I will not make a comment on any of those submissions, save to say that the applicant might be right.  The Full Court might take the view that my decision is wrong in which case presumably the orders that I made will be set aside and the matter perhaps remitted for rehearing or, on the basis of the findings of fact that I have made, including the findings about loss and damage, the matter can be determined by the Full Court.  The point, though, as Mr Morris makes, is that if the appeal succeeds then the costs orders will fall. 

12. I see no reason in this case to depart from the general principle that costs should follow the event.  Much of the submissions in this application centred on what occurred in another application before the Supreme Court of Queensland and which involved the same parties, but in my view, none of that has anything to do with what it is that I have to decide in this case. 

13. For those reasons, in my opinion the respondent is entitled to an order for costs for all of the proceedings and, as the respondent seeks, I will discharge order 2 of the orders of 15 April and proceed to assess the costs of the application as a whole.

14. Annexure FGM2 to Ms Manderson’s affidavit filed on 10 July, 2013 sets out a calculation of costs pursuant to schedule 1 to the Federal Circuit Court Rules. No issue was taken with that calculation. It includes items by reference to the event based court scale for opposing an initiating application up to the completion of the first court date, the daily hearing fees uplifted by 50 per cent to take account of the advocacy loading, the summary hearing which was the summary dismissal application and some disbursements. It also takes into account the preparation for the final hearing, the daily hearing fee for that event and certain disbursements.

15. I am satisfied that the costs of and incidental to the proceedings are properly assessed at $26,831.99.

16. In addition to that there ought to be an order for the costs of and incidental to this application which, it seems to me, amounts to a further $1661 under stage 3 of the schedule and $1495.50, being the daily hearing fee and the advocacy loading - a total of $3156.50.

17. The applicant says that the costs order, if there be one, should be stayed.  No proper basis is made out in the evidence or the argument for a stay of the costs order.  It may be, as the applicant says, that the appeals before the Full Court will be successful and, if they are, no doubt the costs order that I have just made will be set aside. 

18. For those reasons, the orders will be as I have pronounced.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  15 August 2013