Warren v Queensland Law Society Incorporated (No.2)
[2015] FCCA 2829
•22 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARREN v QUEENSLAND LAW SOCIETY INCORPORATED (No.2) | [2015] FCCA 2829 |
| Catchwords: COSTS – Indemnity basis – costs fixed. |
| Legislation: Federal Circuit Court (Bankruptcy) Rules 2006, r.13.01 |
| Applicant: | ALEXIA MARGARET WARREN |
| Respondent: | QUEENSLAND LAW SOCIETY INCORPORATED |
| File Number: | BRG 632 of 2015 |
| Judgment of: | Judge Vasta |
| Hearing date: | 22 September 2015 |
| Date of Last Submission: | 24 September 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 22 October 2015 |
REPRESENTATION
The Applicant appearing on her own behalf
| Counsel for the Respondent: | Mr L S Reidy |
| Solicitors for the Respondent: | Tucker & Cowen Solicitors |
ORDERS
The Applicant pay the Respondent’s costs of and incidental to these proceedings fixed in the sum of $41,571.75.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 632 of 2015
| ALEXIA MARGARET WARREN |
Applicant
And
| QUEENSLAND LAW SOCIETY INCORPORATED |
Respondent
REASONS FOR JUDGMENT
Introduction
On 22 September I delivered judgement in this matter. I dismissed the Applicant’s claim. When I delivered judgement, the Respondent made submissions that they should be paid their costs by the Applicant.
The respondent gave me written submissions and had given those to the Applicant. The Applicant said that she was not in a position to argue the matter of costs. I informed the parties that I would not be in the Brisbane jurisdiction until the week of 19 October 2015.
I then ordered that the Applicant file and serve written submissions on or before 4.00pm on 2 October 2015 and that I would then give a judgment in the week of 19 October 2015. The Applicant had failed to file any submissions by 19 October 2015. My Associate then sent an email to the Applicant as to whether she would file any written submissions. That email was not answered until the morning of 21 October 2015 at 8:53am.
At 2.25pm on 20 October 2015, the Registry contacted my Chambers informing my Associates that the Applicant was attempting to file her submissions. The Registry were not allowing the filing as it was 18 days late but upon instruction by me, my Associates told the Registry to allow the filing. I have read those submissions.
I propose then to make my decision in regard to the matter of costs.
The proceedings from the point of view of the Respondent
In the proceedings the Applicant raised a number of arguments as to why I should accede to her submissions. I found that her arguments were spurious and without foundation.
It is trite to say that costs follow the event. The Respondent submits that I could order indemnity costs against the Applicant. This is because of the following matters:-
a)the Applicant did not back down from her unmeritorious arguments and therefore wasted the time of the court;
b)the conduct of the proceedings was irresponsible and caused unnecessary expenditure on behalf of the respondent;
c)the Applicant did not comply with directions;
d)the Applicant filed affidavits in submissions at the last minute causing disruption to the Respondent and the processes of the court as if to ambush the Respondent;
e)the Applicant claimed a disputed debt when an examination of the materials showed that there was no substance to that claim;
f)an illogical argument was mounted that the Law Society did not have the capacity to defend her application;
g)the Applicant maintained a reliance on a Queensland Court of Appeal authority that did not support any point that the Applicant made;
h)the Respondent was forced to work through pointless, voluminous and late affidavits in submissions to try and discern what it was that the Applicant was submitting;
i)unfounded allegations of misconduct were made about officers of the Respondent;
j)the focus of the Applicant’s case was on criticisms of process but there was no argument that the debt was not in fact owed;
k)the conduct in this application was a “re-run” of the course of conduct observed by Justice Wilson in the QCAT hearings;
The proceedings from the point of view of the Applicant
The Applicant, in her written submissions, has reiterated most of her submissions before me in the substantive hearing.
The thrust of her contentions is that the lawyers appearing for the Respondent had no authority to do so. Such argument is based on a peculiar interpretation of s.699(1) of the Legal Profession Act 2007 (QLD). The Applicant maintains that such provision is mandatory. It is clearly not. I don’t propose to traverse this issue again as I explained my reasoning in the judgment in the substantive matter.
The Applicant submits that the costs were not lawfully incurred by the Respondent. That is nonsense.
In the alternative, the Applicant submits that the costs should be on a party-party basis. She submits that such an order will allow scrutiny of the costs incurred.
Conclusion as to Costs
I accept the submissions made by the Respondent. The conduct of the Applicant can only be described as irresponsible. There was no rational thought or argument behind any of her points. Her performance was reminiscent of the character of Billy Flynn, the lawyer in the musical “Chicago”, who famously said of the jury “how can they hear the truth above the roar”, and there was plenty of “roar” in the proceedings before me.
To my mind, this is the kind of matter where it would be appropriate to order costs, not on a party-party basis, but on an indemnity basis.
However, whilst I would be disposed to granting indemnity costs, I feel that in this case such an order would only delay matters. It is clear to me that the Applicant would do whatever she could to frustrate the taxing and assessment of costs.
Instead, I have decided to fix the quantum. I will be including the costs thrown away on 10 September 2015 when the matter was adjourned by the Registrar. I do so because the adjournment was caused by the actions of the Applicant.
Basis for calculations
I have had regard to r.13.01 of the Federal Circuit Court (Bankruptcy) Rules 2006,
“Basis for costs
(1) Subject to Division 13.2, a person who is entitled to costs in a proceeding to which the Bankruptcy Act applies is entitled to costs in accordance with Part 40 of the Federal Court Rules 2011 unless the Court otherwise orders.
(2) In making an order for costs, the Court may fix the amount of the costs.
(3) If the Court fixes the amount of the costs, Part 40 of the Federal Court Rules 2011 does not apply to a bill of costs submitted for the costs, except for the issue of a certificate of taxation.”
As such the Court can fix the costs.
I have also had regard to r.40.02 of the Federal Court Rules 2011,
“Other order for costs
A party or a person who is entitled to costs may apply to the Court for an order that costs:
(a) awarded in their favour be paid other than as between party and party; or
(b) be awarded in a lump sum, instead of, or in addition to, any taxed costs; or
(c) be determined otherwise than by taxation.
Note 1 The Court may order that costs be paid on an indemnity basis.
Note 2 The Court may order that the costs be determined by reference to a cost assessment scheme operating under the law of a State or Territory.”
Schedule 3 of the Federal Court Rules 2011 provides for the allowances for costs for work done and services performed. It speaks of attendances by a Lawyer requiring the skill of a lawyer and makes an allowance for each unit of 6 minutes a sum in all circumstances not exceeding $55.00.
This equates to a maximum cost, under the Rules, of $550 an hour for a solicitor.
The Affidavit of Richard Geoffrey Hancock sworn 22 September 2015 details the costs incurred by the Respondent. However I do have some problem with the affidavit. Whilst Mr Hancock speaks of a work in progress ledger for the matter in paragraph 8 of his affidavit, the figures I get from his attachment are different to what it is that Mr Hancock calculates.
In his Annexure “RGH-3”, the totals are 613 units worked by Mr Hancock and 70 units worked by the junior solicitor. At paragraph 8 Mr Hancock says that the ledger records tasks in units of 5 minutes. That means that the 613 units equates to 51.1 hours. For the junior solicitor, 70 units equates to 5 hours and 50 minutes.
Mr Hancock’s charge rate is $475.00 an hour and it has been submitted that this is the applicable rate upon which I should order the costs. Given that the maximum amount allowable is $550 an hour, such a basis is more than fair.
The junior solicitor’s rate is $175.00 an hour and it is submitted that it is that rate upon which I should also base the costs.
Therefore the total of Mr Hancock’s costs is $475 multiplied by 51.1 hours giving a total of $24,272.50. The costs of the junior solicitor are calculated at $1020. The fees of Counsel are $12,500.00.
On my calculations, this gives a sub-total of $37,792.50. The GST must be added to this sum giving a total of $41,571.75
I order that the Applicant pay the Respondent’s costs fixed in the sum of $41,571.75.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 22 October 2015
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