FEDERAL COURT OF AUSTRALIA
Thomas v Romeo Lockleys Asset Partnership (No 2) [2022] FCA 1276
File number: SAD 105 of 2020
SAD 169 of 2020Judgment of: CHARLESWORTH J Date of judgment: 6 October 2022 Date of publication of reasons: 26 October 2022 Legislation: Fair Work Act 2009 (Cth) s 570
Federal Court of Australia Act 1976 (Cth) s 33V
Legal Profession Act 2006 (ACT) ss 269, 277
Cases cited: Thomas v Romeo Lockleys Asset Partnership [2022] FCA 1106
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Division: Fair Work Division Registry: South Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 57 Date of hearing: 29 September 2022 SAD 105 OF 2020 Counsel for the Applicant: Mr R Markham Solicitor for the Applicant: Adero Law Counsel for the Respondents: Mr T Duggan KC Solicitor for the Respondents: Crawford Legal Counsel for Adero Law: The non-party Adero Law appeared by its representative Mr R Markham SAD 169 of 2020 Counsel for the Applicant: Mr R Markham Solicitor for the Applicant: Adero Law Counsel for the Respondents: Mr T Duggan KC Solicitor for the Respondents: Crawford Legal Counsel for Adero Law: The non-party Adero Law appeared by its representative Mr R Markham ORDERS
SAD 105 of 2020 BETWEEN: CHRISTOPHER PETER THOMAS
Applicant
AND: ROMEO LOCKLEYS ASSET PARTNERSHIP, BEING THE PARTNERSHIP OPERTED BY LOCKLEYS FOODLAND PTY LTD & ROMEO LOCKLEYS HOLDINGS PTY LTD (ABN 12 244 067 815)
First Respondent
LOCKLEYS FOODLAND PTY LTD (ACN 108 166 276)
Second Respondent
ROMEO LOCKLEYS HOLDINGS PTY LTD (ACN 108 157 928)
Third Respondent
SAD 169 of 2020 BETWEEN: MARTIN SHINA
Applicant
AND: “ROMEO NSW PARTNERSHIP” BEING THE PARTNERSHIP OPERATED BY ROMEO NSW INVESTMENTS PTY LTD AND THE TRUSTEE FOR ROMEO NSW HOLDING TRUST (ABN 11 807 080 683)
First Respondent
ROMEO NSW INVESTMENTS PTY LTD (ACN 156 756 544)
Second Respondent
ROMEO NSW HOLDINGS PTY LTD (ACN 156 757 809)
Third Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
6 OCTOBER 2022
THE COURT ORDERS THAT:
1.For the purposes of paragraph 6 of the orders made on 19 September 2022, the questions set out in Attachment A to these orders (Referred Questions) are referred to a Registrar of the Court (Referee), for inquiry and report pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) and r 28.61 and r 28.66 of the Federal Court Rules 2011 (Cth).
2.The Referee is to provide a report containing the Referee’s opinions in relation to the Referred Questions on or before 29 November 2022, or on such later date as the Court may determine.
3.Except to the extent identified in the Referred Questions, the Referee is not to inquire into:
(a)the consequences that should follow from any identified non-compliance with the provisions of any law regulating the legal profession; or
(b)whether there should be an uplift of Adero Law’s professional fees referable to due care and skill.
4.For the purposes of the referral, the Referee:
(a)is to proceed…
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- Case
- [2022] FCA 1276
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the legal costs claimed by the applicant were reasonable and necessary. The court needed to determine whether the costs were within the scope of the costs agreement between the applicant and its legal representatives, and whether the costs were proportionate to the work performed. The court also had to consider whether the applicant had complied with relevant laws regulating the legal profession and whether there should be an uplift of the applicant's professional fees referable to due care and skill.
The court referred several questions to a Registrar of the Court to assist in determining whether the lump sum assessment should be varied. The Registrar was directed to provide a report containing opinions on the allowable amounts for various items of professional fees and disbursements, as well as the nature and reasonableness of the tasks underlying the activities performed by the applicant's legal representatives. The Registrar was also directed to consider whether the applicant had complied with relevant laws regulating the legal profession and whether there should be an uplift of the applicant's professional fees referable to due care and skill. The court made several orders to facilitate the inquiry and report, including orders for the applicant and its legal representatives to provide additional information and documentation to the Registrar.
The court made several orders in relation to the referral, including orders for the applicant and its legal representatives to provide additional information and documentation to the Registrar. The court also made orders for the Registrar to provide a report containing opinions on the allowable amounts for various items of professional fees and disbursements, as well as the nature and reasonableness of the tasks underlying the activities performed by the applicant's legal representatives. The court made it clear that the Registrar was not to inquire into the consequences that should follow from any identified non-compliance with the provisions of any law regulating the legal profession or whether there should be an uplift of the applicant's professional fees referable to due care and skill. The court also made orders for the applicant and its legal representatives to bear their own costs of their participation in the referral and for the applicant and its legal representatives not to withdraw their application for an order varying the amount specified in the previous orders without the leave of the Court.
Orders
Orders of the court
1. For the purposes of paragraph 6 of the orders made on 19 September 2022, the questions set out in Attachment A to these orders (Referred Questions) are referred to a Registrar of the Court (Referee), for inquiry and report pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) and r 28.61 and r 28.66 of the Federal Court Rules 2011 (Cth).
2. The Referee is to provide a report containing the Referee’s opinions in relation to the Referred Questions on or before 29 November 2022, or on such later date as the Court may determine.
3. Except to the extent identified in the Referred Questions, the Referee is not to inquire into:
(a) the consequences that should follow from any identified non-compliance with the provisions of any law regulating the legal profession; or
(b) whether there should be an uplift of Adero Law’s professional fees referable to due care and skill.
4. For the purposes of the referral, the Referee:
(a) is to proceed on the basis that Adero Law is entitled to be remunerated in accordance with Sch 3 of the Rules;
(b) is not required to conduct a detailed and complete assessment of costs but may otherwise inquire in to the Referred Questions with as much specificity or generality as the Referee thinks fit so as to assist the Court to determine whether to vary the lump sum assessment in paragraph 5 of the orders made on 19 September 2022;
(c) may request that Adero Law provide such additional information relevant to the Referred Questions as the Referee considers appropriate;
(d) is to include details of any requests for the provision of information and the response given by Adero Law to any such requests; and
(e) notwithstanding any suppression or non-publication order, may access and have regard to the following materials on the Court file:
(i) the reasons in: Thomas v Romeo Lockleys Asset Partnership [2022] FCA 1106;
(ii) the material filed in support of the interlocutory application (approval application);
(iii) a copy of the transcript of submissions made in support of the approval application; and
(iv) the affidavit filed in accordance with paragraph 6(b) of these orders.
5. Adero Law is to provide to the Referee copies of all documents provided to Ms Catherine Dealehr for the purpose of the preparation of any report for use in these proceedings, including all correspondence passing between Ms Dealehr and its representatives.
6. On or before 13 October 2022, Adero Law as an interested non-party is to:
(a) undertake a review of the time keeping records referred to in the report of Ms Dealehr dated 8 June 2022 (Dealehr Report), so as to ensure that they contain (and only contain) work that Adero Law asserts would ordinarily be properly chargeable to the applicant, and time entries Adero Law asserts are reasonably necessary for the performance of itemised activities; and
(b) file and serve on the applicant an affidavit:
(i) disclosing the outcome of its review and annexing (in electronic form as appropriate) the revised time records;
(ii) providing a description of the work undertaken prior to the entry into the costs agreement and an explanation as to why any such work is said to be chargeable to the applicant;
(iii) discretely identifying the fees and disbursements said to be chargeable to the applicant for the purpose of obtaining any report of a costs consultant;
(iv) providing a detailed description of the work undertaken in the preparation of pleadings, including the provision of work product justifying the professional fees and disbursements claimed against the applicant, and explaining those charges in light of the hours referred to in Table 11 and Table 21 of the Dealehr Report; and
(v) disclosing the extent to which any drafting, analysis, case theory preparation, modelling or other work product is a duplication or repetition of work produced in relation to any other litigation.
7. Adero Law is to bear its own costs of its participation in the referral.
8. Except with the leave of the Court, the applicant and Adero Law are not to withdraw their application for an order varying the amount specified in paragraph 5 of the orders made on 19 September 2022.
9. Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ATTACHMENT A
Referred Questions
For the purposes of the Referred Questions;
· the Dealehr Report is the report of Ms Catherine Dealehr dated 8 June 2022 forming annexure RMM 6-1 to the affidavit of Mr Rory Michael Markham affirmed on 9 June 2022.
· the Reasons are those published as Thomas v Romeo Lockleys Asset Partnership [2022] FCA 1106.
· the applicants are the applicant in this proceeding and the applicant in SAD169/2020.
1. With respect to the table contained at Reasons [136], what is the Referee’s opinion as to the allowable amounts for the items referred to in:
(a) the row titled Step 2: “Amount of professional fees pursuant to Scale”;
(b) the row titled Step 3: “Less reductions – non-claimable”;
(c) the row titled Step 4: “Less reductions – discounts”; and
(d) the row titled “Disbursements”?
Without limitation, in answering Question 1, the Referee is directed to address Questions 2 to 6 and such other subject matter as the Referee considers appropriate.
2. Does the Referee agree with:
(a) the opinions in the Dealehr Report as to the determination of operator positions?
(b) the deductions identified in Tables 11 and 12 of the Dealehr Report?
(c) the adoption of a time based approach rather than an item based approach with respect to any particular activity or task?
3. What is the nature of the tasks underlying the activities referred to in Table 10 of the Dealehr Report, including the tasks referred to as “Plan Prepare, Draft” and “Review, Analyse”?
4. On an assessment of costs, would all such tasks be chargeable to the applicants?
5. To what extent are the hours attributable to those tasks reasonably necessary for their proper performance?
6. To the extent that the tasks included the input or manipulation of data in a spreadsheet or model for the purpose of alternate dispute resolution procedures or otherwise for the provision of advice:
(a) what did that task require?
(b) what is the appropriate hourly rate applicable to the task?
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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