Starr v Westpac Banking Corporation (No.2)
[2019] FCCA 18
•8 January 2019
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 |
| 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
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
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.
The applicant is a litigant in person. He commenced this proceeding by filing an application on 8 June, 2018.
On 27 July, 2018, the respondent filed a response in the proceedings and sought that the proceedings be summarily dismissed.
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.
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.
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.
On 21 September, 2018 the respondent’s solicitor appeared with counsel at the hearing of the summary dismissal application. The applicant appeared by telephone.
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.
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
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.
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”.
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.
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.
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.
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”.
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.
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.
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 |
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.
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 Federal Magistrates Court Rules 2001. His Honour said:
7. The event based system for costs found in the Federal Magistrates Court Rules is an attempt to simplify the assessment of costs and to avoid the necessity for either the state-based consideration by costs assessors or the Federal Court taxation approach. Unfortunately, like all well-intentioned ideas it is hostage to misunderstandings and the purpose of this judgment is to attempt to correct those for the benefit not only of these parties but for the benefit of others who come in the future.
…
13. … In respect of the advocacy loading I would explain this as follows. Where it has been certified that the matter is fit for an advocate under Part 20.15 this means that the advocate is entitled to 150% of the daily hearing fee. In addition, the instructing solicitor is entitled to the daily hearing fee. The only exception is when the advocate and the instructing solicitor both come from the same firm. In those circumstances (as set out in the Rules) only one fee of 150% of the daily hearing fee is payable. In this case counsel is therefore entitled to the advocacy loading on the daily hearing fee making the total payable to him of $1,027.50. This is all that counsel is entitled to. The applicant is not entitled to submit counsel’s fee note as a disbursement.
His Honour’s judgment has been followed on a number of occasions since: Rentoul v Poynton (No.2) [2008] FMCAfam 295 at [36]; Kavanagh v Madgwick (No.3) [2008] FMCAfam 287 at [42]; Bunnag v Minister for Immigration & Citizenship (No.2) [2008] FMCA 430 at [11]; Lee v Proctor & Gamble Australia Pty Ltd (No.2) [2012] FMCA 1075 at [39]. I applied Conlan in Hamlin v The University Of Queensland (No.3) [2013] FCCA 1129. Consistently with those decisions, I will treat Counsel’s fees not as a disbursement, but by reference to the hearing fees and advocacy loading provisions in the Court’s scale of costs.
The Federal Circuit Court Rules provide:
21.14 Solicitor as advocate
(1) If a solicitor appeared for a party on a hearing alone or instructed by another solicitor who is a member of the same firm, the amount to which the party is entitled for the hearing is limited to:
(a) 150% of the daily hearing fee for 1 solicitor; and
(b) a fee for preparation.
(2) The party is not entitled to an amount for the preparation of a brief on hearing.
21.15 Advocacy certificate
The Court or a Registrar may certify that it was reasonable to employ an advocate, or more than 1 advocate, to appear for a party in a proceeding.
21.16 Counsel as advocate
If the employment of an advocate is certified as reasonable, the amount payable for counsel to appear is the daily hearing fee and advocacy loading in accordance with Parts 1 and 2 of Schedule 1.
There were two court events before this application was finally determined. The first was a directions hearing on 30 July, 2018. The second was the day on which the respondent’s application to summarily dismiss the applicant’s claim was heard. Certification that it was reasonable to employ an advocate on any of those occasions was not sought by the respondent. There is no certification pursuant to r.21.15 that it was reasonable to employ an advocate in respect of any of those proceedings.
However, at least by inference, the respondent now seeks certification that it was reasonable to employ an advocate to appear for it on each of the two occasions the matter was before the Court.
I do not consider that it was reasonable for the respondent to employ an advocate on the first court date. The solicitor with the conduct of the proceedings could have appeared at the first court date and sought the directions that were made on that day. The allowance for that day should remain as the daily hearing fee for a short mention.
On the next occasion, the respondent’s application for summary dismissal was heard. It was reasonable to employ an advocate for the purposes of that hearing and I so certify for the purposes of r.21.15 of the Federal Circuit Court Rules. Accordingly, the amount payable in respect of that Court event is the hearing fee with an advocacy loading. There should also be an allowance of a daily hearing fee for the instructing solicitor.
For those reasons, I order that the applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $8,197.68.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 8 January 2019
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