Trakimaite v Aubertin (No 2)
[2024] FedCFamC2G 1394
•20 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Trakimaite v Aubertin (No 2) [2024] FedCFamC2G 1394
File number(s): SYG 1114 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 20 November 2024 Catchwords: PRACTICE AND PROCEDURE – Costs – Application for costs where the applicant was successful in the substantive proceeding – Where the criteria for costs ordered on an indemnity basis was not satisfied – Costs ordered in accordance with the Court’s scale Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Cases cited: Trakimaite v Aubertin [2024] FedCFamC2G 1150
Calderbank v Calderbank [1975] 3 All ER 333
Division: General Number of paragraphs: 9 Date of hearing: 20 November 2024 Place: Sydney Counsel for the Applicant: Mr L. Finch, direct access brief Respondents: No appearance by or on behalf of the respondents ORDERS
SYG 1114 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SONATA TRAKIMAITE
Applicant
AND: RICHARD DESIRE AUBERTIN
First Respondent
AXE CONSTRUCTION GROUP
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The respondents pay the applicant’s costs of the proceeding as assessed in accordance with Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The matter be referred to a registrar of the Court for the purpose of assessing the applicant’s costs in accordance with the reasons for judgment of 20 November 2024.
3.The respondents pay interest on the judgment for the period 31 October 2020 to 8 November 2024 quantified in accordance with the Federal Court Practice Note (GPN-INT).
4.The applicant file a note quantifying the interest payable and explaining the reasoning leading to that quantification, following which, if satisfied of its correctness, the Court will enter that amount as the interest to be paid.
5.Interest and costs be paid by the respondents to the applicant within 28 days of the quantification of each of those entitlements respectively.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
This proceeding was commenced by the applicant, Ms Trakimaite on 21 June 2021, following the termination of a complaint she had made to the Australian Human Rights Commission (Commission). She alleged that she had suffered sexual harassment by the first respondent, Mr Aubertin, during her employment with the second respondent, Axe Construction Group Pty Ltd. She also alleged that she had been dismissed from that employment in an act of sex discrimination because she was pregnant.
On 8 November 2024, judgment on those claims was delivered and Ms Trakimaite was successful on the sexual harassment claim: Trakimaite v Aubertin [2024] FedCFamC2G 1150. The discrimination claim was not made out. The matter was listed for submissions on costs and these reasons concern that question.
Costs Hearing
It should be noted that the respondent's legal representatives filed a notice of withdrawal on 14 November 2024 and, although it might be open to argue that the respondents might not have been absolutely clear as to the position their solicitors were taking, I think that they would have been under no illusion that those solicitors were not going to be attending the costs argument today. I should further note that Mr Aubertin was in court for the delivery of judgment and would have heard the matter being listed for argument on costs today.
Today the matter was called outside the Court, and he has not appeared and there has been no appearance by the second respondent either. I am unaware that the Court has been contacted by the respondents to explain their absence or to seek an adjournment to today's date. In the circumstances, I am satisfied it is appropriate to proceed to determine the question of costs.
CONSDIERATION
Ms Trakimaite sought costs on two bases, the first being on an indemnity basis and secondly on a lump sum basis fixed in the amount of $50,000. Although, I accept that Ms Trakimaite made offers of settlement in accordance with the principle in Calderbank v Calderbank [1975] 3 All ER 333, the circumstances of this matter, outlined in her written submissions filed on Ms Trakimaite's behalf, do not persuade me that the criteria for the grant of costs on the indemnity basis have been satisfied.
The alternative prospect of a lump sum order is also not, in my view, appropriate given that I am not in a position to determine whether the amount proposed would or would not be a reasonable amount to award Ms Trakimaite for her success in the proceeding. I accept that $50,000 is a significant discount on the solicitor-client costs which she has been charged, based on the documents annexed to her written submissions on costs, but, as I say, I cannot satisfy myself from the information before me of the reasonableness of the proposed lump sum.
The best approach, it appears to me, is that costs be taxed or, alternatively, assessed in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). Mr Finch, who appears for Ms Trakimaite today, has invited the Court to select the latter option, which I am prepared to do.
The difficulty in quantifying costs today arises out of the fact that Mr Finch, who acted on a direct access basis, has performed not only the role of counsel but also, in many respects in the management of the matter, the role of a solicitor. In those circumstances his fee note cannot be accepted as a disbursement in the nature of counsel’s fees in the ordinary course and allowed as a disbursement. It needs to be addressed by having regard to those functions which are in the nature of a solicitor's role and those matters which are in the nature of counsel's role.
CONCLUSION
I order in relation to those matters particularised in counsel’s fee note annexed to Ms Trakimaite’s written submissions on costs which are in the nature of a solicitor’s function, that those costs be assessed in accordance with the scale provided by the Court’s Rules. In relation to that work which Mr Finch performed which was truly counsel's work, those items may be dealt with as disbursements, together with such other matters as are claimable disbursements.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 13 December 2024
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