Ryan as Personal Representative of the Estate of the Late Peter John Ryan v Sunshine Coast Hospital and Health Service (No 2)
[2021] FCCA 1979
•25 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ryan as Personal Representative of the Estate of the Late Peter John Ryan v Sunshine Coast Hospital and Health Service (No 2) [2021] FCCA 1979
File number(s): BRG 456 of 2019 Judgment of: JUDGE JARRETT Date of judgment: 25 August 2021 Catchwords: COSTS – Costs according to event based court scale – party and party costs – indemnity costs. Legislation: Disability Discrimination Act 1992 (Cth)
Disability (Access to Premises-Buildings) Standards 2010
Federal Circuit Court of Australia Act 1999 (Cth), s. 79
Federal Circuit Court Rules 2001, rr. 21.02(2), 21.10, Pt. 1 of Sch. 1
Federal Court Rules 2011 Pt. 40
Cases cited: BHP Billiton Iron Ore Pty Ltd v National Competition Council (No. 2) [2007] FCA 557
Fetherstone v Peninsula Health (No 2) [2004] FCA 594
Hamlin v University of Queensland (No 2) [2013] FCCA 702
Hinchcliffe v University of Sydney (No 2) [2004] FMCA 640
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
Ryan as Personal Representative of the Estate of the Late Peter John Ryan v Sunshine Coast Hospital and Health Service [2021] FCCA 1537
Number of paragraphs: 27 Date of last submission/s: 19 August 2021 Date of hearing: By written submission Place: Brisbane Counsel for the Applicant: Mr O’Gorman SC Solicitor for the Applicant: Robert Bax & Associates Counsel for the Respondent: Mr Freeman Solicitor for the Respondent: Crown Law
Table of Corrections 27 August, 2021 In paragraph 26 all references to the year 2021 have been changed to 2020. ORDERS
BRG 456 of 2019 BETWEEN: DAVID RYAN AS REPRESENTATIVE FOR THE ESTATE OF THE LATE PETER JOHN RYAN
Applicant
AND: SUNSHINE COAST HOSPITAL AND HEALTH SERVICE
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
25 AUGUST 2021
AMENDED 27 AUGUST 2021THE COURT ORDERS THAT:
1.The respondent pay the applicant’s costs of and incidental to the application filed on 14 May, 2019 including reserved costs, if any, to be taxed pursuant to Part 40 of the Federal Court Rules 2011:
(a)on a party and party basis up to and including 31 January,
20212020; and(b)thereafter, on the indemnity basis.
Notation: Order 1(a) has been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to show “2020” in lieu of “2021”.
REASONS FOR JUDGMENT
JUDGE JARRETT:
On 6 July, 2021 I delivered reasons for judgment which in effect allowed the principal application and made, by and large, the orders sought by the applicant in the proceedings. On 4 August, 2021 orders were made that were consistent with my reasons.
The applicant now seeks his costs of the proceedings. He argues that those costs ought to be taxed on the indemnity basis.
The application was brought in this Court’s human rights jurisdiction alleging contraventions of the Disability Discrimination Act 1992 (Cth). The Court has power to order costs in such cases pursuant to s.79 of the Federal Circuit Court of Australia Act 1999 (Cth).
Whilst the making of a costs order is discretionary, in matters of this kind, the usual rule is that the costs of the proceeding follow the event: Fetherstone v Peninsula Health (No 2) [2004] FCA 594 at [6] – [8]. This will usually be so unless “some good reason connected to the case is shown to the contrary”: BHP Billiton Iron Ore Pty Ltd v National Competition Council (No. 2) [2007] FCA 557 at [27].
The respondent argues that there are matters here that justify a departure from the usual rule. Those matters are to be found in the conduct of the proceedings by the applicant which, it is said, have put the respondent to a range of unnecessary costs, particularly in respect of the period prior to 6 April, 2020. The respondent’s submission is that each party should bear their own costs of these proceedings.
The respondent says that the applicant’s conduct was unreasonable in the following respects:
(a)purporting to include the State of Queensland as a respondent to the application by its inclusion in a statement of claim delivered after the commencement of the proceedings, in the circumstances where the State of Queensland was not named in the initiating application;
(b)failing to comply with the Court’s orders to file his material by 8 November, 2019 seeking an amendment to those orders at a sufficiently early time, or providing the material at the later time which was indicated in correspondence to the respondent’s representative; and
(c)failing to provide adequate details to ground the claim prior to 6 April, 2020 meaning that the respondent was left to guess the precise nature of the claim that it was expected to meet until six weeks prior to the scheduled commencement of the trial. The applicant’s failure in this regard impacted on the respondent’s ability to prepare witness material, brief its expert and otherwise prepare for trial.
The respondent argues that once the case was properly articulated, a number of concessions were able to be made by the respondent as to the rectification works that were required. It is right to say that these concessions shortened the length of the trial.
However, each of these submissions must be rejected. The naming of the State of Queensland does not seem to have caused any particular prejudice. It is not suggested that any particular costs were caused by the applicant naming the State of Queensland in the statement of claim. There was never any application made by the State of Queensland to deal with that purported difficulty. It seems to have just been ignored by all. The record indicates that there is only one respondent. No particular additional costs incurred as a result of that action by the applicant have been identified by the respondent, either by evidence or in its submissions.
The late delivery of the applicant’s material does not seem to have caused any increase in costs. The applicant’s evidence in chief was originally due by 8 November, 2019. It was not delivered until 15 November, 2019 (the expert evidence upon which he relied) and 18 November, 2019 (his lay evidence). The respondent sought and obtained a consequential extension for the delivery of its evidence. The respondent argues that unnecessary costs were incurred because the respondent was required to make an interlocutory application for variation of the programming orders so as to allow it an adequate time to prepare its own material following receipt of the applicant’s material. At the hearing of that interlocutory application on 7 February, 2020 the respondent was successful in obtaining the variation requested. Nonetheless, no costs of that application were sought (either in the application in a case itself, or at the hearing of that application) and no order reserving those costs or otherwise was made. The parties were to be before the Court on 7 February, 2020 in any event.
To the extent that the respondent argues that the applicant failed to provide adequate details to “ground” his claim prior to 6 April, 2020, I reject that argument. The applicant’s case was articulated in a statement of claim, delivered by the applicant at the respondent’s insistence. No formal complaint was made about the statement of claim. There was no application to strike it out for lack of substance or for any other reason. It was not amended. It was the pleading upon which the applicant went to trial and upon which he succeeded. I reject the respondent’s argument that it was “left to guess the precise nature of the claim that it was expected to meet until six weeks prior to the scheduled commencement of the trial. The applicant’s failure in this regard impacted on the respondent’s ability to prepare witness material, brief its expert and otherwise prepare for trial”. However, as the record shows, the respondent prepared and filed its witness material in December, 2019 including its expert evidence (save for Ms Flores’s second report). This submission has no foundation.
In the course of litigation directions requiring parties to take particular steps by particular times are commonplace. A failure to observe those times is also commonplace. Here, there was no interlocutory skirmishing about pleadings and both the applicant and the respondent delivered their trial material in a timely way, although not strictly in accordance with the directions made by the Court. Notwithstanding that, the litigation was conducted efficiently by the parties and their lawyers.
Having regard to the orders that I made on 6 July, 2021 there can be no doubt that the applicant should have his costs of the proceedings.
The applicant says that in the special circumstances of this case, he should have his costs on the indemnity basis.
The applicant’s submissions proceed on the basis that the ordinary rule is that costs are taxed on a standard basis, but that indemnity costs may also be awarded where there is something special about the circumstances of the matter before there will be a departure from the ordinary rule that costs are paid on a standard basis. Presumably the applicant seeks that his costs be taxed according to Part 40 of the Federal Court Rules 2011. But no submissions have been addressed as to that. 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 Federal Circuit Court Rules 2001: FCCR 21.10, Hinchcliffe v University of Sydney (No 2) [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 and Hamlin v University of Queensland (No 2) [2013] FCCA 702. The FCCR provide for an event based scale of costs which does not differentiate between party and party costs or costs taxed on any other basis. In the absence of any argument to depart from the prima facie position established by the Federal Circuit Court Rules, the cost to be paid by the respondent to the applicant should ordinarily be assessed according to FCCR Schedule 1.
However, I will treat the applicant’s submissions as going to both the question of whether the costs should be assessed on a scale other than that set out in FCCR Part 1 of Schedule 1.
The applicant submits his costs should be awarded on the indemnity basis because:
(a)the respondent was aware of and acknowledged that it had and was continuing to engage in unlawful disability discrimination; and/or
(b)the case was unduly prolonged by the respondent following the receipt of the opinion of Ms Flores that supported the relief sought by the applicant; and/or
(c)the respondent imprudently refused an offer of compromise.
As to the first matter, the respondent accepted in its outline of argument filed on 5 May, 2020 that it was aware that it had engaged in unlawful disability discrimination. In the outline it accepted that:
(a)it had engaged in unlawful disability discrimination in significant respects. The concessions are to be found at [22]-[28], [39]-[41]), [70(a), (b), (c), (d), (e), (h), (i), (j), (1), (m), (n), (o), (q), (r) and (t)] and [71] of the outline;
(b)in some respects the Disability (Access to Premises-Buildings) Standards 2010 and other standards dealing with access requirements for the design and construction of the respondent’s hospital were not met. It acknowledged:
39. The respondents (had) proceeded on the basis that the relevant Disability Standards and other standards dealing with access requirements for the design and construction of the Hospital had been complied with.
40. The respondent now accepts that, in relation to some aspects, this was not the case and concedes that further works ought to be undertaken as outlined in paragraphs 23 to 28 above.
I accept that it follows that by 5 May, 2021 the respondent had largely accepted the allegations made by the applicant, but despite this acceptance, it still required the matter to go to a trial.
Moreover, in its final written submissions filed on 19 June, 2021 the respondent accepted:
(a)the areas of agreement concerning the defective features of the hospital that the applicant claimed to be in breach of the Disability Discrimination Act (at [8]); and
(b)the applicant's submissions as to the rectification work and enhancements that the respondent accepted ought to be performed and would be performed (at [90]).
As to the second matter, the respondent relied upon expert testimony from Ms Patricia Flores, a Senior Access Consultant and Occupational Health and Safety Consultant. She provided two reports that became part of the evidence in the case: the first dated 10 December, 2019 and the other dated 12 May, 2020.
Ms Flores’s reports support the applicant’s case in large measure. I noted that at [82], [93], [96], and [97] of my reasons: Ryan as Personal Representative of the Estate of the Late Peter John Ryan v Sunshine Coast Hospital and Health Service [2021] FCCA 1537. I accepted Ms Flores' opinions that supported the rectification work sought by the applicant but which was resisted by the respondent: see, for example, my reasons at [98(a)], [98(b)], [99], [l00(a)], [l00(b)], [l00(c)], [l00(d)], [l00(e)], [l00(f)], [l00(g)], [l00(h)], [l00(i)], [l00(j)], [l00(k)]).
I accept that by not accepting and acting upon the opinions of Ms Flores outlined in her report dated 12 May, 2020 the respondent made a trial of the application inevitable when it did not need to be.
Finally, the applicant points to an offer of compromise that the respondent did not accept. The applicant forwarded an offer to the respondent on 24 January, 2020. The respondent rejected this offer. In the result, the applicant received an order that was more favourable than he had sought in his offer that was rejected by the respondent. Having regard to the affidavit of Nicholas Daunt filed on 19 August, 2021 and the annexures to that document, I accept that the applicant received an order that was more favourable than he had sought in his offer.
CONCLUSION
The concessions by the respondent and the respondent’s own expert evidence demonstrate that the applicant’s complaints had merit from the outset of the proceedings. The opposition to his claim is difficult to understand.
The proceedings involved technical aspects of the design and construction of the Sunshine Coast University Hospital. Both parties engaged and led evidence from experts. The applicant, justifiably in my view, engaged senior counsel.
The applicant’s submissions persuade me that costs should not be assessed according to FCCR Part 1, Schedule 1 but rather should be taxed according to Part 40 of the Federal Court Rules as provided for in FCCR 21.02(2). Those costs should be taxed on a party and party basis from the commencement of the proceedings and up to and including 31 January, 2020. Thereafter the costs should be assessed on the indemnity basis having regard to the offer of compromise made by the applicant on 24 January, 2020 (which was open for acceptance until 31 January, 2020).
There will be orders accordingly.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 25 August, 2021. Associate:
Dated: 25 August 2021
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