Trapman v Sydney Water Corporation and Ors (No.2)
[2011] FMCA 533
•12 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRAPMAN v SYDNEY WATER CORPORATION & ORS (No.2) | [2011] FMCA 533 |
| HUMAN RIGHTS – Costs – application for costs – competing costs claims. |
| Federal Magistrates Court Rules 2001, Sch.1 |
| Ho v Regulator Australia Pty Ltd (No.2) [2004] FMCA 402 James v Surf Road Nominees Pty Ltd (No.2) [2005] NSWCA 296 McBride v State of Victoria (No.2) [2003] FMCA 313 Elite Protective Personnel Pty Ltd v Salmon (No.2) [2007] NSWCA 373 Trapman v Sydney Water Corporation & Ors [2011] FMCA 398 Trapman v Sydney Water Corporation & Ors [2009] FMCA 942 |
| Applicant: | WILLIAM TRAPMAN |
| First Respondent: | SYDNEY WATER CORPORATION |
| Second Respondent: | MARK DAVIES |
| Third Respondent: | MARK TUNKS |
| Fourth Respondent: | JOHN KOVAC |
| Fifth Respondent: | LOGAN MAHADEVA |
| File Number: | SYG 1930 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 June 2011 |
| Date of Last Submission: | 27 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Goodchild |
| Solicitors for the Applicant: | Friend & Co |
| Solicitor for the First Respondent: | Ms Wood |
| Solicitors for the First Respondent: | Sparke Helmore |
| Solicitor for the Second to Fifth Respondents: | Ms Wood |
| Solicitors for the Second to Fifth Respondents: | Sparke Helmore |
ORDERS
The First and Second Respondents are to pay to the Applicant one half of his costs as agreed or assessed in accordance with Schedule 1 of the Federal Magistrates Court Rules 2001.
The Applicant is to pay the costs of the Third, Fourth and Fifth Respondents in accordance with Schedule 1 of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1930 of 2008
| WILLIAM TRAPMAN |
Applicant
And
| SYDNEY WATER CORPORATION |
First Respondent
| MARK DAVIES |
Second Respondent
| MARK TUNKS |
Third Respondent
| JOHN KOVAC |
Fourth Respondent
| LOGAN MAHADEVA |
Fifth Respondent
REASONS FOR JUDGMENT
Application
The application before the Court relates to the costs which should be awarded to or against the Applicant arising out of the decision of this Court in his claim against the Respondents (Trapman v Sydney Water Corporation & Ors[1]). That decision provided that:
a)the First Respondent Sydney Water Corporation and the Second Respondent Mark Davies were to pay the Applicant the sum of $5,000.00 by way of compensation: and
b)the Application was dismissed as against the other Respondents.
[1] [2011] FMCA 398
The Applicant seeks an order for costs against the First and Second Respondents, Sydney Water Corporation and Mr Davies, against whom his Application was successful.
The Applicant submits that he was successful against two of the Respondents and is therefore entitled to an award of costs. It is conceded that the Applicant failed on a number of his claims. As a result, the Respondents are asking for costs on behalf of the three Respondents against whom the Application was unsuccessful. Counsel for the Applicant submitted that there is no evidence that these Respondents, all being employees of Sydney Water Corporation, would incur any liability for costs.
The Applicant concedes that there should be a discount on the costs order which he receives but submits that the Respondents’ estimate that he should only receive 25% of his costs is an underestimate. The Applicant relies on the decision of Driver FM in Ho v Regulator Australia Pty Ltd (No.2)[2], a decision where both the applicant and respondent sought costs orders arising out of the principal judgment.
[2] [2004] FMCA 402
It is submitted on behalf of the Applicant that:
a)There should be an Order that the First and Second Respondents pay to the Applicant at least 50% of his costs as agreed or assessed; and
b)The Third, Fourth and Fifth Respondents should pay their own costs.
Ms Wood, who appeared for the Respondents, submitted that the Court should depart from the usual order for costs against the First and Second Respondents. The Third, Fourth and Fifth Respondents seek the usual order as to costs.
Ms Wood referred the Court to a number of cases where the Court concerned departed from the usual order for costs or made orders for payment of only a portion of a successful party’s costs, particularly James v Surf Road Nominees Pty Ltd (No.2)[3], and Elite Protective Personnel Pty Ltd v Salmon (No.2)[4]. It was submitted that those decisions established that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the hearing, either by way of evidence or argument.
[3] [2005] NSWCA 296
[4] [2007] NSWCA373
The Respondents submit that the Court should depart from the usual order for costs because:
a)The Applicant originally raised particulars of twelve separate claims and allegations of racial discrimination, but, after an interlocutory application by counsel for the Respondents, on 16th September 2009 the Court upheld the Respondents’ objection to four out of the twelve particulars (Trapman v Sydney Water Corporation & Ors[5]);
b)When judgment was delivered on 2nd June 2011, the Court found only one of the remaining eight particulars proved, being one in respect of the Second Respondent;
c)The Respondents were therefore successful in defending all but one of the twelve particulars of the Applicant’s Application;
d)The hearing proceeded over seven hearing days;
e)The Application was listed for submissions on 12th March 2010, with a written timetable for submissions, but on 12th March the Applicant sought an adjournment to allow further time to the Respondents’ written submissions;
f)The adjournment was granted but the Respondents’ costs were reserved.
[5] [2009] FMCA 942
The Respondents’ primary submission is that, because of the Applicant’s limited success and the Respondents’ “overwhelming” success, it would be appropriate for the Applicant and the First and Second Respondents to pay their own costs.
In the alternative, the Respondents submit that:
a)The Applicant should not be entitled to more than 25% of his costs as agreed or assessed against the First and Second Respondents; and
b)The Applicant should pay the costs of the Third, Fourth and Fifth Respondents as agreed or assessed.
Conclusions
In Ho v Regulator Australia[6], Driver FM at [12] referred to a quote from Ritchie’s Supreme Court Procedure at page 3156.12:
‘The general proposition that successful parties are usually entitled to their costs of the proceedings and the “follow the event rule” can combine to produce difficult discretionary considerations where the proceedings involve multiple issues and a party succeeds on some issues and fails on others. Particular difficulties can arise where an otherwise unsuccessful defendant succeeds on issues that occupied a substantial part of the time taken by the proceedings.[7]
[6] Supra
[7] [2004] FMCA 402 at [12]; Uniform Civil Procedure (NSW) PAGE 8720
In this case, the Applicant brought a claim with 12 particulars, of which four were the subject of a ruling that the Court did not have jurisdiction to hear them.
Of the remaining eight, the Applicant was successful on one. In Ho v Regulator Australia, Driver FM at [15] expressed support for the approach taken by McInnis FM in McBride v State of Victoria (No.2)[8]. In that case, the Applicant had succeeded in one of seven claims. His Honour rejected the strictly mathematical approach suggested by the Respondent, holding that it was “somewhat artificial…to apportion costs on a six-seventh or one-seventh basis”.[9] McInnis FM considered the substantial outcome of the case, noting that the Applicant had not been successful in establishing all aspects of her claim and that a considerable period of time on the first day of the case had been taken up with jurisdictional issues relating to the Respondent’s defence.
[8] [2003] FMCA 313 (wrongly cited in Ho v Regulator Australia)
[9] [2003] FMCA 313 at [8]
The Applicant in this case succeeded on one issue and was unsuccessful on the balance. He was also unsuccessful on half of the matters raised by the Respondents in their interlocutory application, where four out of eight claims were found to be outside the Court’s jurisdiction.
In my view, the Applicant should receive half of his costs against the First and Second Respondents.
As to the Applicant’s claim against the other three Respondents, the fact is that he was unsuccessful. I do not see any reason why those Respondents should not be entitled to an order for costs. It is immaterial that they were at the time employees of Sydney Water Corporation. There is no evidence as to what their costs liability would be. They were, however, represented by solicitors and counsel.
In the exercise of the Court’s discretion, I propose to order that the Applicant should be entitled to an order for half of his costs as against the First and Second Respondents and that he should pay the costs of the Third, Fourth and Fifth Respondents as assessed or agreed.
Costs should be determined on the basis of the scale of costs applicable under the Federal Magistrates Court Rules 2001.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 11 July 2011
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