FEDERAL COURT OF AUSTRALIA
Soden v Croker (No 3) [2016] FCA 249
File number: NSD 1392 of 2014 Judge: PERRY J Date of judgment: 16 March 2016 Catchwords: COSTS – general principle that costs follow the event applied – where lump sum award of costs is appropriate under rule 40.02 of the Federal Court Rules 2011 (Cth). Legislation: Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: Attorney-General (NSW) v Croker [2010] NSWSC 942
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Commonwealth v Croker [2010] FMCA 852
Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd [2008] FCA 1051
Julien v Secretary, Department of Employment and Workplace Relations (No 2) [2009] FCA 1259
Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450
Date of hearing: Heard on the papers Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: Ms D Ward Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: The respondent did not file any submissions or evidence in relation to the issue of costs ORDERS
NSD 1392 of 2014 BETWEEN: WARWICK SODEN (IN HIS CAPACITY AS REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA)
Applicant
AND: CLAYTON ROBERT CROKER
Respondent
JUDGE:
PERRY J
DATE OF ORDER:
16 MARCH 2016
THE COURT ORDERS THAT:
1.The respondent pay the applicant’s costs fixed in the sum of $55,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1. INTRODUCTION
By an application filed on 24 December 2014 (as amended on 11 February 2015), the applicant sought an order pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) prohibiting the respondent, Mr Clayton Robert Croker, from instituting any proceedings in the Federal Court without prior leave of the Court. That application was wholly successful, with the Court making an order on 27 January 2016 in the terms sought in the application (as amended): see Soden v Croker (No 2) [2016] FCA 15 (Croker (No 2)). In this regard, I note that the applicant did not press an order staying other proceedings in the Federal Court for the reason that no such proceedings were on foot. The question of costs was reserved, as foreshadowed at the hearing, and orders were made also on 27 January 2016 for the parties to file any affidavit evidence and short written submissions on which they sought to rely on the issue of costs. Subject to the parties communicating any objection by 4 March 2016, the orders provided for the issue of costs to be determined on the papers. No objection was communicated and accordingly I have resolved the issue without a further…
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- AGLC
- Soden v Croker (No 3) [2016] FCA 249
- Case
- [2016] FCA 249
- Decision Date
CaseChat Overview and Summary
The court considered the principles governing the award of lump sum costs, as outlined in rule 40.02 of the Federal Court Rules 2011 (Cth). It noted that the discretion to award costs as a lump sum must be exercised judiciously and only after the parties have had an adequate opportunity to make submissions. The court was satisfied that Mr Croker had been given sufficient opportunity to respond to Mr Soden's application and evidence. Furthermore, the court recognised that a lump sum award may be appropriate to avoid the expense, delay and protraction of litigation arising out of a taxation process. In determining the appropriate amount, the court needed to ensure the estimate was “logical, fair and reasonable.” Given Mr Croker's failure to provide any evidence or submissions in response to Mr Soden's application, the court found it appropriate to award the costs as sought by Mr Soden.
In conclusion, the court found that it was logical, fair and reasonable to award Mr Soden's costs as a fixed sum of $55,000. The court noted that Mr Croker had not contested the evidence provided by Mr Soden and had failed to make any submissions or provide any evidence in response to the application. Therefore, the court awarded the costs as sought by Mr Soden, reflecting the success of his application and the absence of any countervailing arguments from Mr Croker.
The court made an order that Mr Croker pay Mr Soden's costs fixed in the sum of $55,000. This decision was based on the principle that a successful party is entitled to its costs and the court's discretion to award costs as a lump sum, given the absence of any response from Mr Croker.
Orders
Orders of the court
1. The respondent pay the applicant’s costs fixed in the sum of $55,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
No written submissions or affidavit evidence was filed by Mr Croker in response, notwithstanding that the orders made on 27 January 2016 allowed Mr Croker a period of two weeks within which to provide any such material. It follows that Mr Croker did not take issue with the evidence on which the applicant relied in support of the costs order sought. 2. CONSIDERATION2.1 Should an order be made awarding the applicant his costs? The power to award costs is conferred by s 43(2) of the FCA Act which relevantly provides:… the award of costs is in the discretion of the Court or Judge. While the question of costs is a matter for the Court’s discretion, the general rule is that a successful party is entitled to its costs: Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at 234-235 [11] (Black CJ and French J); Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 at [2] (Beaumont and French JJ). The applicant was successful and there is no reason why the applicant should be deprived of his costs. 2.2 Fixed or lump sum award of costs2.2.1Relevant principles Rule 40.02 of the Rules provides that:A party or a person who is entitled to costs may apply to the court for an order that costs:(a) awarded in their favour be paid other than as between party and party; or(b) be awarded in a lump sum, instead of, or in addition to, any taxed costs; or(c) be determined otherwise than by taxation. The discretion to order costs as a lump sum must be exercised judicially and only after giving the parties an adequate opportunity to make submissions on the matter: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120 (von Doussa J) (Beach Petroleum); Julien v Secretary, Department of Employment and Workplace Relations (No 2) [2009] FCA 1259 (Julien) at [9] (Spender J). I am satisfied that the orders made on 27 January 2016 afforded Mr Croker an adequate opportunity to make submissions in response to the applicant’s position which was clearly set out and explained in the applicant’s written submissions and to file any evidence which he wished in response to Mr Abood’s affidavit: see above at [2]. As the applicant submitted, the discretion to award a lump sum may be exercised where the Court is of the view it will avoid the expense, delay and protraction of litigation arising out of a taxation, whether the case be a complex or simple one: Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd [2008] FCA 1051 (Ginos) at [22] (Finn J); Beach Petroleum at 120. Furthermore, in making a lump sum estimate, the Court must be satisfied that it is “logical, fair and reasonable”: Ginos at [23]; Beach Petroleum at 123. As von Doussa J explained in Beach Petroleum at 123:On the one hand the Court must be astute to prevent prejudice to the respondents by over estimating the cost, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary ‘fail safe’ discount on the cost estimates submitted to the Court....