Starr v Westpac Banking Corporation (No.2)

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FEDERAL CIRCUIT COURT OF AUSTRALIA

STARR v WESTPAC BANKING CORPORATION (No.2) [2019] FCCA 18
Catchwords:
PRACTICE & PROCEDURE – Costs.

Legislation:

Federal Circuit Court Rules 2001, rr.13.10, 21.14, 21.15, 21.16

Cases cited:

Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Bunnag v Minister for Immigration & Citizenship (No.2) [2008] FMCA 430
Colan Products Pty Ltd v Luxon Pty Ltd (No.2) [2002] FMCA 90
Hamlin v The University Of Queensland (No.3) [2013] FCCA 1129
Kavanagh v Madgwick (No.3) [2008] FMCAfam 287
Lee v Proctor & Gamble Australia Pty Ltd (No.2) [2012] FMCA 1075
Macedon Ranges Shire Council v Thompson [2009] VSCA 209
Rentoul v Poynton (No.2) [2008] FMCAfam 295

Applicant: WAYNE MATTHEW STARR
Respondent: WESTPAC BANKING CORPORATION
File Number: BRG 564 of 2018
Judgment of: Judge Jarrett
Hearing date: By written submission
Date of Last Submission: 21 November 2018
Delivered at: Brisbane
Delivered on: 8 January 2019

REPRESENTATION

The Applicant appeared in person
Solicitors for the Respondent: Thomson Geer

ORDERS

  1. The applicant pay the respondent’s costs of and incidental to the proceedings fixed in the sum of $8,197.68.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 564 of 2018

WAYNE MATTHEW STARR

Applicant

And

WESTPAC BANKING CORPORATION

Respondent

REASONS FOR JUDGMENT

  1. These reasons relate to the respondent’s application that the applicant pay its costs of the proceedings consequent upon me summarily dismissing the applicant’s claim.

  2. The applicant is a litigant in person.  He commenced this proceeding by filing an application on 8 June, 2018.

  3. On 27 July, 2018, the respondent filed a response in the proceedings and sought that the proceedings be summarily dismissed.

  4. On 30 July, 2018 the respondent appeared at the first court date with counsel.  The Court made an order requiring the parties to file submissions in respect of the summary dismissal application.

  5. On 6 August, 2018 in compliance with the order made 30 July, 2018, the respondent filed submissions.  The applicant filed affidavits on 21 and 22 August, 2018. 

  6. On 20 September, 2018 both parties filed submissions – the respondent supplementary submissions and the applicant his primary submissions in opposition to the summary dismissal application. 

  7. On 21 September, 2018 the respondent’s solicitor appeared with counsel at the hearing of the summary dismissal application. The applicant appeared by telephone.

  8. On 26 October, 2018 I made orders that the applicant’s application be dismissed under r.13.10 of the Federal Circuit Court Rules2001 (Cth) and made directions about submissions on costs.

  9. Both parties have filed outlines of submissions relating to costs.  The respondent filed an outline of submissions on 9 November, 2018 together with an affidavit of Tanya Michele Smith deposing to the disbursements incurred by the respondent in the proceedings.  The applicant filed his written submissions on 21 November, 2018.

Consideration

  1. The respondent argues that costs ought to follow the event.  That is the usual rule, which may be displaced if special circumstances warrant a departure from it.

  2. The applicant submits that each party should bear their own costs.  He argues that…

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Details
Case
[2019] FCCA 18
Decision Date

CaseChat Overview and Summary

In *Starr v Westpac Banking Corporation (No.2)*, heard in the Federal Circuit Court of Australia, the applicant, Mr. Starr, a litigant in person, sought to recover costs from the respondent, Westpac Banking Corporation, following the summary dismissal of his claim. The respondent had applied for the summary dismissal of the proceedings, which was subsequently granted by the Court.

The central legal issue before the Court was whether the applicant should be ordered to pay the respondent's costs of and incidental to the proceedings, and if so, on what basis. The applicant argued that each party should bear their own costs, citing his status as a litigant in person and suggesting the Court should make allowances for this. The respondent sought its costs, initially arguing for indemnity costs but then seeking assessment according to the standard scale under the Federal Circuit Court Rules.

Judge Jarrett reasoned that the usual rule that costs follow the event should apply, as there were no special circumstances demonstrated by the applicant to warrant a departure from this principle. The Court found that the applicant's submissions regarding the respondent's conduct and the potential discovery of loss were insufficient to displace the general rule. The Court also clarified that the respondent's request for costs was to be assessed according to the standard scale under the Federal Circuit Court Rules, and that the cases relied upon by the applicant concerning indemnity costs against a litigant in person were distinguishable.

Consequently, the Court ordered that the applicant pay the respondent's costs of and incidental to the proceedings, fixed in the sum of $8,197.68, which was calculated based on the itemised costs under Part 1 of Schedule 1 of the Federal Circuit Court Rules.

Orders

Orders of the court

1.

The applicant pay the respondent’s costs of and incidental to the proceedings fixed in the sum of $8,197.68.

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT BRISBANE

BRG 564 of 2018

WAYNE MATTHEW STARR

Applicant

And

WESTPAC BANKING CORPORATION

Respondent

REASONS FOR JUDGMENT

1.

These reasons relate to the respondent’s application that the applicant pay its costs of the proceedings consequent upon me summarily dismissing the applicant’s claim.

2.

The applicant is a litigant in person. He commenced this proceeding by filing an application on 8 June, 2018.

3.

On 27 July, 2018, the respondent filed a response in the proceedings and sought that the proceedings be summarily dismissed.

4.

On 30 July, 2018 the respondent appeared at the first court date with counsel. The Court made an order requiring the parties to file submissions in respect of the summary dismissal application.

5.

On 6 August, 2018 in compliance with the order made 30 July, 2018, the respondent filed submissions. The applicant filed affidavits on 21 and 22 August, 2018.

6.

On 20 September, 2018 both parties filed submissions – the respondent supplementary submissions and the applicant his primary submissions in opposition to the summary dismissal application.

7.

On 21 September, 2018 the respondent’s solicitor appeared with counsel at the hearing of the summary dismissal application. The applicant appeared by telephone.

8.

On 26 October, 2018 I made orders that the applicant’s application be dismissed under r.13.10 of the Federal Circuit Court Rules 2001 (Cth) and made directions about submissions on costs.

9.

Both parties have filed outlines of submissions relating to costs. The respondent filed an outline of submissions on 9 November, 2018 together with an affidavit of Tanya Michele Smith deposing to the disbursements incurred by the respondent in the proceedings. The applicant filed his written submissions on 21 November, 2018.

Consideration

10.

The respondent argues that costs ought to follow the event. That is the usual rule, which may be displaced if special circumstances warrant a departure from it.

11.

The applicant submits that each party should bear their own costs. He argues that he is a respondent in person. He hopes the Court will “make allowances for that position”.

12.

The respondent argues that it seeks its costs on an indemnity basis and relies upon Macedon Ranges Shire Council v Thompson [2009] VSCA 209 at [17] and Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159. But in the same submissions the respondent asks for those costs to be assessed according to Part 1 of Schedule 1 of the Federal Circuit Court Rules 2001. The submissions are confused and confusing. The Federal Circuit Court Rules draws no distinction between party and party costs and indemnity costs where those costs are assessed according to Part 1 of Schedule 1 of those Rules.

13.

I accept the applicant’s submission that the cases relied upon by the applicant are distinguishable primarily because what was under consideration in each of those cases was whether there ought to be orders for indemnity costs against a litigant in person. Here the costs sought are in accordance with the event based scale under the rules of this court.

14.

The primary position is that if there is an order for costs, it ought to be an order for costs made in accordance with Parts 1 and 2 of Schedule 1 of the Rules. The respondent’s submissions acknowledges that position.

15.

The applicant points out that he is “a good standing client of the Respondent has not caused “great hardship and expense” or displayed “fraudulent and unreasonable behaviour” to the other party through the court application”.

16.

He also points out that:

a) he has incurred costs as a result of commencing the proceedings, including filing fees, and expert witness affidavits; and

b) as a result of the court action, the respondent provided to him further documents relating to his loan with the respondent after stating that no further documents existed or were required. He claims that those documents have lead to a forensic accountant concluding that the applicant may have suffered a loss of more than $4000.

17.

However nothing in the applicant’s submissions demonstrates that there are special circumstances attending this case that warrant a departure from the general approach that costs should follow the event. The applicant proceedings were summarily dismissed because, I found, he had no reasonable prospect of successfully prosecuting the proceedings.

18.

The respondent should have its costs of and incidental to the proceedings fixed according to Part 1 of Schedule 1 of the Federal Circuit Court Rules. I assess those costs as follows:

Item

Description

Amount

1

Initiating or opposing an application which includes interim orders (other than procedural orders) up to the completion of the first court date

$2,922.00

13

Daily hearing fee (short mention – first court date)

$305.00

14

Disbursements (search fees)

$303.68

3

Interim or summary hearing – as a discrete event

$1,867.00

13

Daily hearing fee (half day hearing + 50% advocacy loading)

$1,680.00

13

Daily hearing fee (half day hearing for attending solicitor)

$1,120.00

Total

$8,197.68

19.

I have allowed for item 1 of Part 1 of Schedule 1 rather than item 2 of that schedule because there was no interim application that was dealt with on the first court date. Although the initiating application included interim relief, that was determined at a later date in accordance with the directions made on 30 July, 2018.

20.

The respondent claimed counsel’s fees by way of disbursement. That approach is incorrect. The proposition is inconsistent with the approach taken by this Court to the proper construction of its Rules. In Colan Products Pty Ltd v Luxon Pty Ltd (No.2) [2002] FMCA 90 Raphael FM discussed the event based system for costs found in the then

Background

Background to the litigation

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Evidence

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Decision

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