Schramm and Ors v Commissioner for Complaints and Ors (No.2) - [2006] FMCA 1660

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCHRAMM & ORS v COMMISSIONER FOR COMPLAINTS, COMMONWEALTH AGED CARE COMPLAINTS RESOLUTION SCHEME & ORS (No.2)

[2006] FMCA 1660

ADMINISTRATIVE LAW – Application pursuant to Administrative Decisions (Judicial Review) Act 1977.

COSTS – Whether partially successful Applicants should receive costs and/or part of Respondents’ costs – whether Federal Magistrates Court appropriate scale.

Administrative Decisions (Judicial Review) Act 1977

Schramm & Ors v Commissioner for Complaints, Commonwealth Aged Care Complaints Resolution Scheme & Ors (No1) [2006] FMCA 1547

First Applicant:

IRENE SCHRAMM

Second Applicant:

EVELYN HORNIG

Third Applicant:

KATHY MITCHELL

Fourth Applicant:

JUNE SMITH

First Respondent:

COMMISSIONER FOR COMPLAINTS, COMMONWEALTH AGED CARE COMPLAINTS RESOLUTION SCHEME

Second Respondent:

MEMBERS OF THE COMPLAINTS RESOLUTION COMMITTEE

Third Respondent:

ILLAWARRA DIGGERS AGED AND COMMUNITY CARE RESIDENCE

File number:

SYG671 of 2006

Judgment of:

McInnis FM

Hearing date:

7 November 2006

Delivered at:

Sydney

Delivered on:

7 November 2006

REPRESENTATION

Counsel for the Applicants:

Mr S Doctor

Solicitors for the Applicants:

Legal Aid Commission

Counsel for the First and Second Respondents:

Mr I.M. Neil SC

Solicitors for the First and Second Respondents:

Phillips Fox

Solicitor for the Third Respondent:

Mr P. Murphy

Solicitors for the Third Respondent::

Paul Murphy & Associates

ORDERS

The decision set out in the letter dated 28 February 2006 from the First Respondent, the Applicant's solicitor, be set aside:
(a)to the extent that they prevent the Applicant's solicitor from accompanying the complainants as an adviser before the determination hearing of the Complaints Resolution Committee; and
(b)to the extent that the only persons who may attend a determination hearing held under the Complaints Resolution Scheme are parties to a complaint where advisers and only such other persons as all the parties agree may be there present;
Leave is given to further amend the Amended Application by filing a Further Amended Application save that leave to add a request for order 5 be refused;
The Further Amended Application, as amended, be otherwise dismissed;
The Respondents pay 70 per cent of the Applicants’ costs, including reserved costs if any, pursuant to schedule 1 of the Federal Magistrates Court Rules 2001.
Liberty to apply is granted to the parties.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 671 of 2006

IRENE SCHRAMM, EVELYN HORNIG, KATHY MITCHELL AND JUNE SMITH

Applicants

And

COMMISSIONER FOR COMPLAINTS ( COMMONWEALTH AGED CARE COMPLAINTS RESOLUTION SCHEME), MEMBERS OF THE COMPLAINTS RESOLUTION SCHEME AND ILLAWARRA DIGGERS AGED AND COMMUNITY CARE RESIDENCE

Respondents

REASONS FOR JUDGMENT

(Revised from transcript)

In this application the Court in a judgment delivered on 18 October 2006 (Schramm & Ors v Commissioner for Complaints, Commonwealth Aged Care Complaints Resolution Scheme & Ors (No1) [2006] FMCA 1547) (the judgment) foreshadowed that it would grant relief to the Applicants pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977. The judgment, clearly considers making , in part, orders favourable to the Applicants. It is equally clear, however, that there is a significant proportion of the orders sought by the Applicants which had been refused, those orders might principally be regarded as declaratory orders. It is not appropriate for me to set out in further detail any outcome of those proceedings in this decision where the Court is required to consider an application by the applicants for an order for costs to be paid by the Respondents.
The order sought by the Applicants in this application is that the Respondents should pay the Applicant's costs including any reserved costs on the Federal Court scale to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules. That order is opposed.
The First and Second Respondents submitted that having regard to the outcome of the proceedings to which I referred to earlier, that there has been what might be regarded as substantial success for the Respondents and specifically for the First and Second Respondents. Accordingly, it is submitted, that an order should be made that the Applicants pay a substantial proportion of the Respondents’ costs. That submission made for and on behalf of the First and Second Respondents is supported by counsel for the Third respondent.
The Respondents have further submitted that in any event any costs order made by the Court should be on the scale of costs appropriate to the Federal Magistrates Court and not the Federal Court scale. Hence the task of the Court is to determine firstly the relevant scale to be imposed and to then consider in the exercise of its discretion the nature of the order to be made for costs in this application. Those two issues, however, should not be regarded as necessarily issues that do not have some relationship to each other. The question of the awarded costs is a matter for the discretion of the Court, it is a discretion which must be exercised judicially. The normal rule is that costs follow the event.
In this matter I am satisfied that the issues agitated before the Court, although involving what the Court noted in its earlier judgment to be consideration of detailed written submissions from the Applicants, and indeed a detailed affidavit in support of the application, referred to in paragraph 9 of the judgment as follows:-
“9. The Applicants have relied upon detailed submissions comprising 56 pages together with an affidavit of Mr Sergent comprising approximately 550 pages (including exhibits). The First and Second Respondents relied upon a written outline of submissions comprising 10 pages, whilst the third Respondent's outline of submissions relied upon, dated 31 May 2006, comprised 8 pages.”
It is clear from that paragraph that the Court's attention was required to be given not simply to those submissions made on the day of the hearing, but also to the material relied upon by the parties.

A substantial volume of material was relied upon by the Applicants.
A significant part of that material, in my view, related to the declaratory relief sought by the Applicants which the Court refused, indeed the Court ruled that order 5 referred to in the further amended application filed on 6 June 2006, not be permitted, that is leave to seek that order was refused. The Court further rejected the Applicants arguments in relation to the other declaratory relief which is evident from the Court's earlier judgment. Those factors are relevant factors to take into account in the exercise of the Court's discretion in relation to the question of costs.
The scale of costs to be imposed is again a matter for the Court's discretion. It is clearly open to a Court to make an order that an application where the subject of the costs apply the Federal Court scale. The factors which the Court may take into account in deciding to award costs on the Federal Court scale, include the complexity and perhaps uniqueness of the issue before the Court.
It is argued for the Applicants that this was indeed a unique application involving the interpretation of a provision which had not hitherto been the subject of judicial determination. And it was further submitted, for and on behalf of the Applicants, that the consideration of issues before the Court did involve complex issues. The Respondents submit that this was not a complex case, despite the fact that it may have been a matter where the Court for the first time was required to interpret a provision and not a case which would attract the application of the Federal Court cost scale.
On the issue of the scale it is my view that the appropriate scale in this instance is the Federal Magistrates Court scale. My reasons for this decision are this was a discrete application which dealt with what could only be described, despite the volume of material provided, as a somewhat narrow issue and ultimately the further complexity in the matter arose from the application by the Applicants for declaratory relief. Having failed to seek that declaratory relief in my view it would inappropriate and unfair to then visit upon the Respondents who were successful on that point, the higher Federal Court scale. For those reasons the appropriate scale in my view is the Federal Magistrates Court scale.
The next issue that the Court needs to consider is against whom the costs order should be made. Having regard to the submissions made by the parties it is my concluded view that the applicants have effectively been successful in what I regard to be the substantive and significant issue before the Court, albeit they were unsuccessful in relation to the declaratory relief sought, to which I have referred in this judgment. The application itself was heard during the course of a day and certainly involved other considerations including confidentiality. Nevertheless the Applicants, in my view, have been substantially successful and have made an application which has in addition to the interests of these applicants, a public interest aspect, and was an application properly brought before the Court.
In the circumstances, in my view, it is appropriate that an order be made for costs in favour of the applicants. I do not accept that there should be an order made in favour of the Respondents, who throughout the hearing and certainly in the course of submissions, challenged those matter sought to be relied upon by the Applicants in achieving the successful outcome that has been achieved, at least insofar as they relate to the foreshadowed order set out in the judgment.
However in the exercise of the discretion of the Court it is relevant to take into account that a further part, and indeed a significant part of the application as further amended, was unsuccessful and that the Respondents were, as I indicated earlier, substantially successful in resisting claims for declaratory relief. Those claims for declaratory relief consistent with my judgment where I had referred to them as being ‘ambitious’ could properly, in my view, be also regarded for the same reasons as being unreasonable. Having decided that those applications were unreasonable it is my view that in matters of this kind it is appropriate in the exercise of the Court's discretion, having indicated that a cost order would be made in favour of the Applicants against the Respondents to make some reduction in the amount of costs payable by the Respondents to the Applicants. Doing the best I can on the material before me, and in the exercise of my discretion and having regard to the arguments above by the parties this day, it is my view that it would be in the interests of justice if the costs order to be made in this matter were that the respondents pay 70 per cent of the Applicants’ costs pursuant to schedule 1 of the Federal Magistrates Court Rules 2001.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 7 November 2006