Sims v Chong (No 2)

[2015] FCAFC 163

FEDERAL COURT OF AUSTRALIA

Sims v Chong (No 2) [2015] FCAFC 163

Citation:	Sims v Chong (No 2) [2015] FCAFC 163
Appeal from:	Sims v Chong [2014] FCA 1069
Parties:	DOUGLAS ARTHUR SIMS v PATTI PENG SA CHONG
File number:	WAD 315 of 2014
Judges:	MANSFIELD, SIOPIS AND RARES JJ
Date of judgment:	17 November 2015
Legislation:	Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:	Sims v Chong (2015) 230 FCR 346 Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476 Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research (No 2) [2013] FCAFC 73 Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2] (1956) 95 CLR 106
Date of hearing:	Heard on the papers
Date of last submissions:	18 August 2015
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	10
Counsel for the Appellant:	M D Howard SC and N Ekanayake (Pro Bono)
Counsel for the Respondent:	M Cuerden SC and S Popperwell
Solicitor for the Respondent:	Denman Popperwell Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 315 of 2014

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DOUGLAS ARTHUR SIMS Appellant
AND:	PATTI PENG SA CHONG Respondent

JUDGES:	MANSFIELD, SIOPIS AND RARES JJ
DATE OF ORDER:	17 NOVEMBER 2015
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application by the respondent for a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) is refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 315 of 2014

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DOUGLAS ARTHUR SIMS Appellant
AND:	PATTI PENG SA CHONG Respondent

JUDGES:	MANSFIELD, SIOPIS AND RARES JJ
DATE:	17 NOVEMBER 2015
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 5 June 2015, we made orders that the appellant be granted leave to appeal, the appeal be allowed and the orders of the primary judge that summarily dismissed Mr Sims’ claim with costs be set aside: Sims v Chong (2015) 230 FCR 346. On 12 August 2015, we ordered that Ms Chong pay Mr Sims’ costs of the application for leave to appeal and the appeal in the agreed sum of $31,135.

2. On 11 August 2015, Ms Chong applied for a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal.

   Ms Chong’s submissions

3. Ms Chong argued that we should grant a certificate because the appeal revealed that the primary judge had made an error “arising from novel legal points”, her arguments to his Honour were not improper or baseless, she had taken on the appellant’s responsibility of preparing the application books for the Full Court, there was no disentitling conduct and Mr Sims did not oppose the grant.

   Consideration

4. The Court’s discretion to grant a costs certificate under s 6(1) of the Act may be exercised, pursuant to s 6(3), if, “in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the respondent” in respect of her costs incurred in relation to the appeal.

5. Mr Sims represented himself in the proceedings before the primary judge but he had the benefit of pro bono senior and junior counsel in the appeal.  The fact that Ms Chong paid for the preparation of the application books does not affect matters, since, as events turned out, she would have had to pay Mr Sims’ costs of doing so had he undertaken that role.

6. In our earlier reasons, we held that the primary judge ought not to have exercised the power to order summary dismissal of Mr Sims’ proceedings.  That was essentially because, in the circumstances, it was not sufficiently clear, in accordance with settled authority on each of the three bases argued, that they ought be determined without a trial of the issues:  Sims 230 FCR at 362 [76]-[77], 363-364 [85]-[87], 364-365 [91]-[92], [95]-[96]. We also noted that the statement of claim clearly required amendment and the primary judge had to face difficulties in addressing and identifying Mr Sims’ arguments (at 365-366 [97]).

7. There is no presumption in favour of the grant of a costs certificate under s 6(1) of the Act: Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476 at 477 per Smithers, Sweeney and Woodward JJ; Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research (No 2) [2013] FCAFC 73 at [16] per North, Rares and Robertson JJ.

8. Here, Ms Chong chose to apply to his Honour for the summary dismissal of Mr Sims’ claim, and she defended that course and his Honour’s reasons for acceding to it in the proceedings before us.  Each of those forensic positions was one that Ms Chong chose to take.  Each involved the risk that she would be unsuccessful and be ordered to pay Mr Sims’ costs:  cf Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2] (1956) 95 CLR 106 at 112-114 per Dixon CJ; Bullock 5 FCR at 478-479. Ms Chong’s decisions to seek and then defend the summary dismissal of Mr Sims’ claim caused her to incur the costs for which she now seeks the grant of a certificate under s 6(1) of the Act.

9. In our opinion, there is nothing in the circumstances that suggests that it would be appropriate for the Attorney-General to authorise payment of the costs that Ms Chong has had to pay under the costs order made on 12 August 2015. That order was a consequence of her forensic decisions in the proceedings before the primary judge and us. Indeed, as we observed in our earlier reasons (230 FCR at 365 [95]) it was not clear that the reach of advocate’s immunity extended to circumstances, such as those Mr Sims alleged, namely, that Ms Chong had made a misrepresentation to him, before her retainer, as to her skill and competence to undertake the retainer. It was not appropriate to summarily dismiss, among others, that issue as Ms Chong had sought.

   Conclusion

10. For these reasons, we are not persuaded that it is appropriate to grant Ms Chong a costs certificate.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Siopis and Rares.

Associate: 

Dated:        17 November 2015