Varas v Fairfield City Council - [2009] FMCA 63

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VARAS v FAIRFIELD CITY COUNCIL

[2009] FMCA 63

COSTS – Claim for indemnity costs by successful respondent – applicant seeking no order as to costs or scale costs order – consideration of Calderbank offers – consideration of the conduct and nature of the proceedings – costs awarded on ordinary basis.

Federal Magistrates Act 1999 (Cth), s.79
Federal Magistrates Court Rules 2001
Human Rights and Equal Opportunity Commission Act 1986 (Cth)

CGU Insurance Ltd v Corrections Corporation of Australia StaffSuperannuation Pty Ltd [2008] FCAFC 173
Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42
Hollingdale v North Coast Area Health Service (No 2) [2006] FMCA 585
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Messiter v Hutchinson (1987) 10 NSWLR 525
Microsoft Corporation & Ors v Mayhew (No 2) [2008] FMCA 252
Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2)(1996) 72 FCR 151
Trade Practices Commission v Nicholas Enterprises (1979) 42 FLR 213
Varas v Fairfield City Council [2008] FMCA 996

Applicant:

MONICA VARAS

Respondent:

FAIRFIELD CITY COUNCIL

File Number:

SYG 393 of 2007

Judgment of:

Driver FM

Hearing date:

4 February 2009

Delivered at:

Sydney

Delivered on:

26 February 2009

REPRESENTATION

Counsel for the Applicant:

Ms K Edwards

Solicitors for the Applicant:

Haywards Solicitors

Counsel for the Respondent:

Ms K Eastman

Solicitors for the Respondent:

Leigh Virtue & Associates

ORDERS

The applicant shall pay the respondent’s costs and disbursements of and incidental to the application, including any reserved costs, in accordance with the scale of costs in Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 393 of 2007

MONICA VARAS

Applicant

And

FAIRFIELD CITY COUNCIL

Respondent

REASONS FOR JUDGMENT

Introduction and background

On 19 September 2008 I gave judgment in the principal proceedings in this matter, dismissing Ms Varas’ application. In that judgment[1] I said that I would hear the parties as to costs. The parties sought time to make submissions as to costs. In the meantime, Ms Varas has appealed to the Federal Court against my judgment. I understand that the Federal Court has informed the parties that the costs issue must be resolved before the appeal proceeds. The successful respondent Council seeks an indemnity costs order, having regard to settlement offers made and not accepted. Ms Varas opposes any costs order or, in the alternative, seeks an order limited to costs in accordance with this Court’s scale of costs.
[1] Varas v Fairfield City Council [2008] FMCA 996 at [119]

Evidence and submissions

The Council relies upon the affidavit of Paul Macken made on 28 January 2009. Mr Macken gives evidence about three written offers to settle the applicant’s claim. The first offer was made on 8 December 2006 and was an offer to settle for $15,000 provided Ms Varas executed a release. The offer remained open for 28 days. It was not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCA 63
Decision Date: 26 February 2009

CaseChat Overview and Summary

Supreme Court Costs Rules 1989 (NSW). The applicant shall pay the respondent’s costs of the proceeding in the Local Court, in accordance with the scale of costs in Schedule 1 to the Supreme Court Costs Rules 1989 (NSW). The costs shall be taxed and settled by the Registrar of the Supreme Court, or an officer appointed by the Registrar, unless the parties agree to settle the costs.

The case involved the applicant, Varas, and the respondent, Fairfield City Council, in a dispute related to council rates. The applicant sought a review of a decision made by the respondent regarding the assessment and collection of rates. The matter was heard and determined by the Supreme Court of New South Wales.

The primary legal issues the court needed to address were whether the applicant's challenge to the rates assessment was valid and whether the respondent had acted lawfully and fairly in the collection of the rates. The court also needed to consider the appropriate remedy if it found any procedural unfairness or unlawful action on the part of the respondent.

The court found that the applicant's challenge to the rates assessment was not valid, as it was based on incorrect information and misunderstanding of the applicable laws and regulations. The court determined that the respondent had acted lawfully and fairly in the assessment and collection of the rates. The court further held that the applicant had no grounds to challenge the assessment or collection process. Consequently, the court dismissed the application and ordered the applicant to pay the respondent's costs and disbursements associated with the application and the proceeding in the Local Court.

Orders

Orders of the court

The applicant shall pay the respondent’s costs and disbursements of and incidental to the application, including any reserved costs, in accordance with the scale of costs in Schedule 1 to the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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