Van Oostveen, William v Commonwealth of Australia

[1998] FCA 1765

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q180 OF 1996

BETWEEN:	WILLIAM VAN OOSTVEEN Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	COOPER J
DATE OF ORDER:	4 DECEMBER 1998
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application for review is dismissed.

2.The applicant for review pay the respondent’s costs of and incidental to the application to be taxed if not agreed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q180 OF 1996

BETWEEN:	WILLIAM VAN OOSTVEEN Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	COOPER J
DATE:	4 DECEMBER 1998
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by William Van Oostveen for review of the taxation of costs awarded against him by Drummond J in dismissing proceedings Q180 of 1996.  The proceedings were dismissed on 24 April 1998.  A subsequent application to stay the orders, including the costs orders was not successful.  An appeal from the orders of Drummond J was dismissed by a Full Court of this Court 

2. The solicitors for the respondent prepared in final form a bill of costs which was filed on 9 July 1998.  The bill was eventually taxed by the Taxing Officer and a Certificate of Taxation issued on 12 October 1998.  The applicant attended on the taxation.  It seems common ground between the parties that on the taxation no specific objection was taken to any item contained in the bill.  Rather, the applicant sought that the Taxing Officer exercise his discretion in favour of the applicant and disallow the costs claimed.  The Taxing Officer has gone through each item in the bill and, on occasions, has taxed off certain of the items claimed.  Otherwise the bill of costs was taxed as presented. 

3. The notice of motion seeking review of the Taxing Officer’s decision was filed on 27 October 1998 with a brief affidavit in support.  There was no request by the applicant for a reconsideration of the bill as a whole or any item in it by the Taxing Officer.  Accordingly, I treated the application for review as being one brought under O62 r11 of the Federal Court Rules.

4. On the application I went through with the applicant the contents of the bill.  I am satisfied that each of the items claimed represents work done by the solicitors for the respondent.  In fact there was no substantial challenge in relation to any particular item in the bill by the applicant.  So far as the quantum of the bill is concerned, there is nothing which would indicate to me any basis to set aside or interfere with the quantum fixed by the Taxing Officer on the taxation of the bill.

5. The applicant points to difficulties in his personal circumstances and seeks that I exercise some discretion in his favour having regard to those.  The difficulty with that course is that it seeks to set aside or interfere with an order for costs made by Drummond J.  That order gives an entitlement to the respondent.  The order has not been set aside on appeal, notwithstanding that it was part of the relief sought before the Full Court on the applicant’s appeal.

6. I do not have the power by way of any general discretion to relieve the applicant in whole or in part from the consequence of the costs order because of his present personal circumstances.  The Court will not interfere with a taxation unless satisfied that there is some demonstrable error of principle which affects the judgment of the Taxing Officer.  In this case there is no error of principle discernible from the documents to which I have been referred today, nor from a consideration of the bill as a whole.

7. In the circumstances, the application for review will be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:            4 December 1998

Applicant :	Applicant in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 December 1998
Date of Judgment:	4 December 1998