Turner v State of Victoria

[2012] FMCA 358

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TURNER v STATE OF VICTORIA & ANOR [2012] FMCA 358

HUMAN RIGHTS – Practice and Procedure – costs – oral application for costs against practitioner – whether application for costs subject to filing written application – when application discontinued – costs sought when application discontinued – whether costs reasonable and properly incurred.

Federal Magistrates Court Rules 2001, rr.13.02(1), 21.07, 21.10

Applicant: JOSHUA TURNER (BY HIS NEXT FRIEND, ANJA TURNER)

First Respondent: STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES)

Second Respondent: KNOXBROOKE INCORPORATED

File Number: MLG 90 of 2010 & MLG 915 of 2010

Judgment of: Turner FM

Hearing date: 23 March 2012

Date of Last Submission: 23 March 2012

Delivered at: Melbourne

Delivered on: 18 May 2012

REPRESENTATION

Counsel for the Applicant: Mr Perkins

Solicitors for the Applicant: Access Law

The First Respondent did not appear.

Counsel for the Second Respondent: Mr Harrington

Solicitors for the Second Respondent: Lander & Rogers

ORDERS

1. The second respondent pay the costs of Access Law fixed at $1206.70.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 90 of 2010 & MLG 915 of 2010

JOSHUA TURNER (BY HIS NEXT FRIEND, ANJA TURNER)

Applicant

And

STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES)

First Respondent

KNOXBROOKE INCORPORATED

Second Respondent

REASONS FOR JUDGMENT

1. On 9 September 2011 in proceeding MLG 90 of 2010 and MLG 915 of 2010, the second respondent made an oral application for costs against Access Law, the solicitors for the applicant, pursuant to r.21.07 of the Federal Magistrates Court Rules 2001 (the “Rules”).

2. On that day the Court made orders including:

   (4)The second respondent file and serve its application for costs against Access Law and affidavit in support by 13 September 2011.

   (5)Should the first respondent wish to make a similar application for costs, it do so in accordance with the procedure as set out in order 4 above.

   (6)Any affidavit in response to the application for costs be filed and served by 27 October 2011.

   (7)The matter is listed at 10am on 6 February 2012 in relation to costs only.

   (8)Costs of today are reserved.

   Those orders were varied on 15 September 2011, but not in a manner relevant to the current issue.

3. There was no order made for a hearing of the oral application for costs – it was not pressed. Although an oral application for costs was made on 9 September 2011, the orders of that date made it clear that the application for costs would not be heard unless a written application and affidavit in support were filed and served by 13 September 2011. There was therefore no application for costs on foot, or to be heard, unless the second respondent filed and served a written application and affidavit in support.

4. On 13 September 2011 the solicitors for the second respondent wrote to Mr Kuek of Access Law and advised him that the second respondent did “not intend to press this application” (for costs). There was therefore no application for costs to be met by Access Law, unless documents were filed and served as ordered.

5. When an application is discontinued, another party may seek costs (r.13.02(1) of the Rules).

6. Mr Kuek gave evidence that he sought advice from Mr Nash Q.C. about the oral application for costs on the day of the hearing on 9 September 2011. The costs of that advice cannot be claimed against the second respondent, as there was no costs application on foot at the end of the hearing. Indeed costs for all work performed by Mr Kuek after 9 September 2011 cannot be claimed against the second respondent, except as set out below.

7. Mr Kuek tendered a bill of costs (Exhibit A2)

8. The Court makes the following findings as to the items in the bill of costs:

Allow
Item 1	$220.00

1. Item 4: Mr Nash’s Tax Invoice for advice in conference (Exhibit A1) relates to 7 September 2011 which is before the oral application for costs was made. Mr Kuek gave evidence that he obtained advice from Mr Nash “on the day of the hearing”, but the Court notes that there were hearings on 7 September 2011 and 9 September 2011. There is no evidence that Exhibit A1 relates to advice by Mr Nash as to the oral application for costs on 9 September 2011.

2. Item 32: Mr Kuek agrees that “David Perkins – fee for conference $220” should be deleted as no such fee was incurred.

Item 2: Allowed – this fee relates to time spent by Mr Kuek in obtaining advice from Mr Perkins. It does not relate to any fee charged by Mr Perkins.	$110.00
Item 3: Disallowed – arranging and attending this conference with Mr Nash Q.C. was not necessary as a costs application was not then on foot.
Item 4: Fee for Mr Nash Q.C. disallowed – (supra).
Item 5: Disallowed as costs application not then on foot, and was subject to the filing and serving of a written application.
Item 6: Allowed – costs properly incurred.	$27.50
Item 7: Allowed – costs properly incurred.	$27.50
Item 8: Disallowed – conversation with Mr Nash Q.C on 13 September 2011 occurred as a result of the premature conference on 9 September 2011.
Item 9: Allowed – costs properly incurred.	$27.50
Item 10: Disallowed. Costs application was not on foot and was conditional on filing and serving a written application.
Item 11: Disallowed as no costs application was on foot at the end of the hearing on 9 September 2011 and letter was not required.
Item 12: Disallowed as no costs application was on foot at the end of the hearing on 9 September 2011 and letter was not required.
Item 13: Allowed – costs properly incurred.	$27.50
Item 14: Disallowed – email sent without a proper basis.
Item 15: Disallowed – email received because of email in Item 14, which has been disallowed.
Item 16: Disallowed – costs not isolated to costs application.
Item 17: Disallowed – letter unnecessary as Court told Mr Kuek he could view the transcript on file.
Item 18: Disallowed – email unnecessary.
Item 19: Disallowed – the email was not tendered. There is no proof that it was necessary or that it related to the costs issue. A folder of documents was handed up by Mr Perkins, but returned as the Court required relevant documents to be tendered individually: the document was not tendered.
Item 20: Disallowed – telephone call to the Registry would have sufficed.
Item 21: Disallowed: not necessary – see post.
Item 22: Disallowed – letter not called for as no costs application on foot.
Item 23: Disallowed – email not required as no costs application on foot.
Item 24: Disallowed – email caused by incorrect understanding by Mr Kuek of the situation as to the application by the second respondent.
Item 25: Disallowed – purchase of transcript not necessary.
Item 26: Disallowed – purchase of transcript not necessary.
Item 27: Disallowed – purchase of transcript not necessary.
Item 28: Disallowed – perusal of transcript not necessary.
Item 29: Disallowed – purchase of transcript not necessary.
Item 30: Disallowed – see post.
Item 31: Disallowed – no costs application then on foot.
Item 32: Disallowed (supra).
Item 33: Disallowed – not properly incurred.
Item 34: Disallowed – not properly incurred.
Item 35: Allowed	$27.50
Item 36: Allowed	$55.00
Item 37: Allowed	27.50
Item 38: Allowed	$99.00
Item 39: Allowed	$27.50
Item 40: Allowed – transcript scanned to Mr Perkins	$220.00
Item 41: Allowed	$55.00
Item 42: 29 items disallowed; 12 items allowed (ie 29%); therefore allow 29% of $880.00	$255.20
$1206.70

1. As to Items 21 and 30, both Mr Perkins and Mr Kuek were present at the hearing on 9 September 2011 when orders were made that an application for costs be filed and served and a hearing would then occur. There was no need to obtain transcript as the orders made it clear that a hearing was conditional upon the second respondent filing and serving an application and affidavit. Also, the Court told Mr Kuek that he “can inspect the transcript on the Court file” (Transcript “T” 9 September 2011 p.72, l.27). The Court disallows Item 21 as it should have been clear that a costs hearing was conditional upon an application being filed and served. The Court disallows Item 30, as the purchase of a copy of the transcript was not justified, and was unreasonably incurred.

2. Ordering costs is discretionary (r.21.10 of the Rules). In the exercise of that discretion, the Court takes into account the conduct of the parties including whether costs were reasonably and properly incurred. The Court finds that all costs incurred between the end of the hearing on 9 September 2011 and the deadline for filing and serving a written application by the second respondent, were not reasonably and properly incurred except as set out above, as the second respondent’s application proceeding was conditional upon a written application being filed and served.

3. The Court refuses costs for work relating to the second respondent’s application, after the Court ordered on 9 September 2011 that for the second respondent to proceed it must file and serve an application and supporting affidavit. The Court finds that Mr Kuek should have waited to see if a written application was filed and served before performing any work on the issue, as proceeding was conditional upon a written application and affidavit being filed and served, and once filed, a hearing was not to occur for three months.

4. The Court however awards costs to Access Law for preparing its application for costs against the second respondent as indicated (supra).

5. The Court orders that the second respondent pay the costs of Access Law fixed at $1206.70.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Turner FM

Date:  18 May 2012