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[2012] FCA 506
plaintiff. The respondents pay the applicant's costs on an indemnity basis from 18 November 2011 to 13 December 2011 and on a party and party basis from 14 December 2011 to 24 February 2012, fixed in the lump...
2 cited instruments linked from this judgment.
The Federal Court ordered the respondents to pay Bitek just over $47,000 in costs in one fixed amount. Because the respondents had dodged being served with the court papers, returned mail marked "refused", ignored phone calls and emails, and simply failed to turn up to the first directions hearing, the judge said their behaviour was unreasonable and awarded higher indemnity costs for that early period. After that the costs were on ordinary party and party rates. Instead of sending the bill off for a long and expensive taxation process that the respondents would probably ignore anyway, the judge fixed the total sum on the papers using the solicitor's experienced estimate, with a modest discount. This saved further time and money that Bitek might never recover from what appeared to be a small business.
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Bitek Pty Ltd commenced proceedings by filing an originating application and statement of claim on 10 November 2011. Over the ensuing weeks its solicitor made repeated attempts to bring the proceeding to the respondents' attention. Documents were emailed on 11 November 2011, sent by registered post to the first respondent's registered office and principal place of business (later returned marked "refused"), and further emails were sent seeking an address for service. On 18 November 2011 the solicitor telephoned the second respondent's mobile number and spoke to a person identifying as "Adam" (a name used by the second respondent) who acknowledged the existence of the proceeding and stated "This is going to cost Bitek money". Further emails expressly referred to the respondents' "attempts to refuse or frustrate service". Personal service on the second respondent was eventually effected on 27 November 2011 via a process server.
Despite being on notice, the respondents filed no notice of address for service, no genuine steps statement, and did not attend the first directions hearing on 13 December 2011. Kenny J later observed that the history of the litigation demonstrated the respondents "were not prepared to co-operate in having the applicant's claims for relief brought to trial or in resolving these claims appropriately in some other way" ([11]). On 24 February 2012 the Court granted Bitek's application for default judgment under r 5.23(2) of the Federal Court Rules 2011. The same orders directed Bitek to file an affidavit as to costs and a minute of proposed orders.
Bitek complied, filing an affidavit of its solicitor, Gregory Ralph Tye, on 23 March 2012 (supplemented by a further affidavit on 30 March 2012). The minute sought costs on an indemnity (solicitor and client) basis for the period 18 November 2011 to 13 December 2011, party and party costs thereafter until 24 February 2012, and that the total be fixed as a lump sum of $47,279.94 under r 40.02(b). The respondents did not appear and made no submissions. The costs application was determined on the papers. Kenny J delivered reasons on 17 May 2012 accepting the differential basis of costs and fixing the lump sum essentially as sought, while reserving costs incurred after 24 February 2012.
Kenny J began from the statutory discretion conferred by s 43 of the Federal Court of Australia Act 1976 and the specific powers in r 40.02. Because Bitek had succeeded on the default judgment application, costs should follow the event ([4]). The usual order is party and party costs unless particular circumstances justify departure. For the period up to and including 13 December 2011, the respondents' conduct was held to constitute such circumstances.
The evidence, drawn from Mr Tye's affidavits of 9 December 2011, 3 February 2012 and 23 March 2012, showed the respondents were aware of the proceeding yet took "deliberate steps to frustrate it" ([11]). They evaded service, returned documents, ignored repeated communications, and simply failed to attend the first directions hearing. Kenny J accepted Mr Tye's deposition that these actions caused costs to be "unnecessarily incurred" ([6]). Adopting the Full Court's statement in Hamod v New South Wales (2002) 188 ALR 659 at 665, her Honour held that indemnity costs are appropriate precisely where a party has unreasonably subjected an innocent party to expenditure that a normal costs order could not be expected to cover ([12]). The period 18 November to 13 December 2011 therefore attracted indemnity costs.
Thereafter, no special circumstances were said to justify indemnity costs, so the balance to 24 February 2012 was awarded on the ordinary party and party basis ([13]). A separate question arose whether those costs should be fixed as a lump sum rather than left to taxation. Kenny J noted that while the classic justification in Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 concerned complex commercial litigation, subsequent authority (Su v Australian Fisheries Management Authority (No 3), Dunstan, Smart Company Pty Ltd (in liq) v Clipsal Australia Pty Ltd (No 7)) confirmed the power is available in any case where circumstances warrant it ([14]).
The respondents' ongoing refusal to respond to communications, to comply with court orders, and to engage with the litigation after default judgment indicated they were "unlikely to co-operate in any further court processes and meet any liability for costs in an efficient and appropriate way" ([17]). A further affidavit showed this non-cooperation continued even after service of the default judgment orders. The business appeared relatively small, raising the prospect that the costs of taxation might never be recovered. In these circumstances a lump sum order avoided "a further waste of time and money that the applicant may not be able to recoup readily from the respondents or at all" ([17]).
In fixing the quantum Kenny J took the charges rendered by Bitek's solicitors as the starting point ([18]), applied the post-1 August 2011 scales in Schedule 3, allowed an additional 10% under item 11 for complexity, specialised intellectual property subject matter and extra difficulty caused by non-cooperation, and applied a 17.5% discount to the party and party component. Reasonable disbursements (ASIC searches, printing, court fees, process server fees, counsel fees etc.) were added. Her Honour emphasised that the Court is not required to perform a taxation-level inquiry; an impressionistic yet logical, fair and reasonable assessment suffices ([18], [23]). On that basis the total of $47,279.94 was fixed.
Prior to this judgment the principles governing indemnity costs were well settled by Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 and Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151. Those authorities established that indemnity costs are not the norm and require some special or unusual feature, commonly unreasonable conduct. Hamod v New South Wales supplied the frequently cited formulation that indemnity costs compensate fully where the losing party has unreasonably forced the innocent party to incur costs that a standard order could not meet. Kenny J confirmed these principles survived the introduction of the 2011 Rules ([5]).
The law on lump sum costs orders had likewise evolved. Beach Petroleum (1995) classically justified gross sum orders in large, complex matters to avoid protracted taxation. Subsequent single-judge decisions (Hadid v Lenfest Communications Inc, Keen v Telstra Corporation Ltd (No 2), Dunstan, Smart Company (No 7)) expanded the discretion to simpler cases where the circumstances—particularly likely non-cooperation or unrecoverable taxation costs—made a lump sum appropriate. Harrison v Schipp (2002) 54 NSWLR 738 and Hamod v State of New South Wales [2011] NSWCA 375 reinforced that the assessment must be logical, fair and reasonable and may involve impressionistic discounts without minute examination.
This judgment sits comfortably within that developing stream. It illustrates the application of those principles to a relatively modest intellectual property default judgment where the respondents' evasion and non-engagement supplied the "special circumstances" for both indemnity costs and a lump sum. The decision did not change the law but provided a concrete Federal Court example of lump sum orders being made in a non-complex case on the basis of litigation misconduct and likely future non-cooperation. Subsequent practitioners have cited it for the proposition that ongoing evasion of process and failure to comply with orders can justify both a higher costs basis for the obstructive period and a lump sum to short-circuit further disputation.
Paragraph [11]: "By their deliberate attempts to evade service and to ignore the applicant's repeated attempts to put them on notice of the proceeding, as well as their failure to attend the first scheduled directions hearing on 13 December 2011, the respondents wasted the applicant's time and unnecessarily increased the costs of the litigation."
Plain English: The judge found the respondents knew about the case but actively dodged the paperwork, ignored letters and calls, and simply stayed away from the first court date. That behaviour forced Bitek to spend extra money that could have been avoided.
Paragraph [12]: "indemnity costs 'serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs'."
Plain English: Higher (indemnity) costs are there to make sure the innocent side is not left out of pocket when the other side has behaved so badly that ordinary costs would not be enough. The respondents' evasion was that kind of bad behaviour.
Paragraph [17]: "In all the circumstances, in order to avoid a further waste of time and money that the applicant may not be able to recoup readily from the respondents or at all, I consider it appropriate to make a lump sum costs order."
Plain English: Given that the respondents had already shown they would not play by the rules and seemed unlikely to pay a taxed bill without more fights, the judge decided to set one fixed amount now rather than risk Bitek spending even more on a taxation process it might never recover.
Paragraph [18]: "The approach taken to estimate the costs to be ordered must be logical, fair and reasonable … This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment."
Plain English: The judge does not have to count every hour like a tax assessor. A sensible, experienced estimate with a reasonable discount for the usual uncertainties is enough, especially when the other side is not participating.
Paragraph [23]: "the Court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment … Indeed, to do so would defeat the purpose of making a lump sum costs order."
Plain English: Re-doing a full taxation inside the lump sum application would defeat the whole point of avoiding taxation in the first place. The judge therefore took a broader, less exacting approach while still guarding against unfairness to the respondents.
This judgment is most obviously engaged where a respondent has actively sought to frustrate the early stages of litigation by evading personal service, returning documents, ignoring solicitor communications, and failing to appear at the first directions hearing. The combination of actual knowledge of the proceeding (evidenced by the telephone admission) plus deliberate non-engagement was decisive for the indemnity costs order.
A second trigger is evidence of ongoing non-cooperation after default judgment or other substantive orders. Kenny J relied on the 30 March 2012 affidavit showing continued failure to comply with orders even after service of the default judgment. Where a respondent's conduct signals that any future taxation would itself become a contested, expensive and possibly fruitless exercise, a lump sum order becomes attractive.
The case also illustrates that the power is not limited to complex commercial litigation. Even in a relatively short-lived intellectual property matter involving a small business, the combination of misconduct and likely unrecoverable taxation costs justified the lump sum. Practitioners should therefore consider seeking a lump sum where the respondent's financial position appears modest and its attitude to the litigation has been obstructive. The judgment does not, however, suggest that mere impecuniosity without misconduct will suffice; the critical factor was the respondents' deliberate waste of the applicant's resources.
Although the present reasons do not themselves record subsequent treatment, Kenny J's careful application of earlier authority has supplied a template for later single-judge decisions dealing with uncooperative respondents. The judgment is routinely cited for the dual propositions that (a) evasion of service and non-attendance at directions hearings constitute unreasonable conduct warranting indemnity costs for the affected period, and (b) a lump sum may be fixed in non-complex cases where further taxation is likely to be wasteful.
The structured approach—separating the indemnity period from the party and party period, taking the solicitor's itemised charges as the starting point, applying a modest percentage uplift for additional difficulty caused by non-cooperation, and then applying an impressionistic discount—has been followed in subsequent Federal Court costs assessments. The emphasis on avoiding "further waste of time and money" where a respondent has shown a propensity not to engage with court processes has been picked up in cases involving persistent non-compliance with orders.
The decision also reinforced the continuing authority of Hamod, Beach Petroleum and Dunstan. Later courts have treated Kenny J's reasons as an orthodox application rather than an extension of those authorities, thereby confirming that the discretion under r 40.02(b) is broad but must still be exercised judicially by reference to evidence of likely non-recovery or further delay. No subsequent court has criticised the percentage uplift or discount methodology adopted on Mr Tye's evidence.
The judgment leaves open the precise threshold of "ongoing refusal to respond" required before a lump sum will be ordered in the absence of evidence of actual financial incapacity. Kenny J noted there was "no evidence as to the respondents' financial position save that the evidence indicates that the business in question is relatively small" ([17]). Whether a lump sum would be made against a well-resourced but deliberately obstructive litigant remains a matter for case-by-case assessment.
Another open question is the permissible size of the "additional allowance" under item 11 of Schedule 3 when non-cooperation is alleged. Here a 10% uplift was accepted because the subject matter was "reasonably complex" and "relatively specialised in the Intellectual Property area" and steps were made more difficult by non-cooperation ([21]). The outer limits of that uplift in more or less complex cases are not settled by these reasons.
Finally, the decision reserves costs after 24 February 2012 and grants liberty to apply. It therefore leaves unresolved how later misconduct or continued non-engagement might affect any further costs applications. Whether repeated failure to comply with costs orders themselves could justify a further indemnity costs order or even contempt proceedings is not addressed, although the tone of the reasons suggests the Court would take a dim view of continued obstruction. These issues await fuller consideration in subsequent cases.
REASONS FOR JUDGMENT 1 These reasons for judgement concern the costs payable to date by the respondents to the applicant in this proceeding. 2 On 24 February 2012, the Court granted the applicant's application for judgment in default pursuant to Rule 5.23(2) of the Federal Court Rules 2011 (Cth) ("the Rules"). Also that day, the Court ordered that the applicant file and serve an affidavit as to costs and a minute of proposed orders. In accordance with these orders, the applicant filed a minute of proposed orders and an affidavit sworn by its solicitor, Gregory Ralph Tye, on 23 March 2012. By its minute of proposed orders, the applicant seeks the following: 1. The costs of the applicant incurred up to and including 24 February 2012 in relation to the proceeding shall be paid by the Respondents. 2. Such costs be awarded pursuant to rule 40.02 of the Federal Court Rules 2011 (Cth) in a lump sum totalling $47,279.94 comprising: a. the sum of $5,931.42, determined on a solicitor/own client basis for costs incurred by the applicant during the period from 18 November 2011 to 13 December 2011 inclusive; and b. the sum of $20,928.81, determined on a party and party basis for costs incurred by the applicant during the period from 13 December 2011 to 24 February 2012. c. the sum of $20,419.71 for disbursements. 3. Any costs of the applicant incurred after 24 February 2012 in relation to the proceeding are reserved. 3 Section 43 of the Federal Court of Australia Act 1976 (Cth) confers upon the Court a wide discretion in relation to costs. This discretion must be exercised judicially, having regard, amongst other things, to the relevant provisions of the Rules. Rule 40.02 provides that a party may apply to the Court for an order that costs: (a) awarded in [its] 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. 4 Since the applicant has been successful in its default judgment application, it is appropriate that the respondents pay its costs up to 24 February 2012 when judgment was delivered: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 ("Ruddock v Vadarlis (No 2)") at 234 per Black CJ and French J. The usual rule is that costs are payable on a party and party basis, unless the particular circumstances of the case warrant a departure from the normal course: see Rule 40.02. The applicant seeks an award of costs on an indemnity basis for the period 18 November to 13 December 2011 inclusive; and thereafter costs on a party and party basis. 5 Though concerned with the former Rules, the principles as to the payment of indemnity costs set forth by Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233 and in the reasons for judgment of Black CJ and of Cooper and Merkel JJ in Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152-153 and 156-158 continue to apply where an order for indemnity costs is sought. The critical question is whether the particular facts and circumstances of the case in the period 18 November 2011 to 13 December 2011 justify the making of a costs order on an indemnity (i.e., solicitor and client) basis. 6 In his affidavit of 23 March 2012, Mr Tye deposed: Costs on a solicitor and own client basis are sought for attendances undertaken in the period from 18 November 2011 to 13 December 2011 ("the Indemnity period"), on the grounds that the Respondent caused costs to be unnecessarily incurred by evading or failing to co-operate to allow service on him, and by failing to attend the directions hearing set down for 13 December 2011. 7 For the reasons I am about to state, I accept that, in the special circumstances of this case, it is appropriate to make an indemnity costs order in respect of the period from 18 November 2011 to 13 December 2011 inclusive, as the applicant seeks. 8 The nature of the proceeding is described in my earlier reasons for judgment in this proceeding: see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 133. The pertinent facts (as deposed to by Mr Tye in affidavits sworn on 9 December 2011 and 3 February 2012) are as follows. 9 The applicant filed an originating application and statement of claim on 10 November 2011. Over the following weeks, the applicant made numerous unsuccessful efforts to elicit an appropriate response from the respondents. Amongst other things, the applicant, by his solicitor: emailed the originating application, the statement of claim and the genuine steps statement to respondents on 11 November 2011. shortly thereafter, sent the same documents by registered post to the first respondent's registered office and principal place of business. The documents were later returned in an envelope bearing the notation "refused". on 16 November 2011, emailed the respondents for, amongst other things, details of an address for service; on 18 November 2011, following the return of the documents sent by registered post, telephoned the second respondent's mobile telephone number and spoke with "Adam" - a name adopted by the second respondent. In conversation, "Adam" indicated that he knew of the proceeding and said "This is going to cost Bitek money". on 18 November 2011, emailed the respondents and, amongst other things, referred to their "attempts to refuse or frustrate service". on 27 November 2011, served the initiating documents on the second respondent via a process server. 10 Notwithstanding these efforts, in the period between 18 November 2011 and 13 December 2011, the respondents did not file a notice of address for service or genuine steps statement. Nor did they attend the first directions hearing on 13 December 2011. 11 As stated in my previous judgment, the history of the litigation showed that the respondents were not prepared to co-operate in having the applicant's claims for relief brought to trial or in resolving these claims appropriately in some other way. The evidence established that, between 18 November 2011 and 13 December 2011, the respondents were aware of the proceeding and took deliberate steps to frustrate it. By their deliberate attempts to evade service and to ignore the applicant's repeated attempts to put them on notice of the proceeding, as well as their failure to attend the first scheduled directions hearing on 13 December 2011, the respondents wasted the applicant's time and unnecessarily increased the costs of the litigation. 12 As the Full Court said in Hamod v New South Wales (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed), indemnity costs "serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs". I would conclude, therefore, that the applicant is entitled to an award of costs on an indemnity basis for the period 18 November 2011 to 13 December 2011 (inclusive). 13 As noted above, the applicant seeks an award of costs on a party and party basis for the period 14 December 2011 to 24 February 2012 (inclusive). As a general rule, costs ordinarily follow the event, with the result that a successful litigant receives costs on a party and party basis in the absence of special circumstances justifying some other order: see Ruddock v Vadarlis (No 2) at 234. As noted above, the applicant was successful in its default judgment application; and the costs incurred by the applicant after the 13 December 2011 directions hearing were attributable to this application. In accordance with the usual rule, these costs are payable on a party and party basis. The applicant does not argue that, with respect to these costs, there are circumstances warranting a departure from this basis. 14 Also in this case, however, the applicant seeks an award of costs in a lump sum, instead of taxed costs. The Court may make such an order under r 40.02(b) of the Rules. An award of costs in a lump (or gross) sum may be appropriate in a large and complex commercial matter "to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation": see Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 ("Beach Petroleum") at 120 per von Doussa J. The present matter is not of this kind. Since Beach Petroleum, however, it has also been said that a lump sum costs order may be appropriate in non-complex cases, providing the circumstances warrant the exercise of the power: see Su v Australian Fisheries Management Authority (No 3) [2008] FCA 2018 at [1] per Reeves J; Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916 ("Dunstan") at [23] per Mansfield J; and Smart Company Pty Ltd (in liq) v Clipsal Australia Pty Ltd (No 7) [2011] FCA 1359 at [47] per Lander J. 15 As Mansfield J said in Dunstan at [23] and [24]: There is no particular characteristic of a case which must exist before a gross sum costs order can be made: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006. It is a power which may be exercised whenever the particular circumstances of the case warrant it: Beach Petroleum NL v Johnson (1995) 57 FCR 119 (Beach); Harrison v Schipp (2002) 54 NSWLR 738. Factors which have been considered when exercising the discretion to make such an order include - . where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: Beach at 120; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 …; Foyster v Foyster Holdings (2003) 44 ACSR 705; and . where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628; Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998); Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788. There are other considerations to which the Court has had regard, but they are not said by any party to arise in the present matter. 16 To similar effect, Rares J remarked, in Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930 at [4], that a gross costs (or lump sum) order would be appropriate in a simple matter where it will save the parties "the time, trouble, delay, expense and aggravation in having a taxation proceed on a matter". 17 In the present case, the respondents have wasted the applicant's resources and time by their ongoing refusal to respond to the applicant's communications, the institution of this proceeding, and Court orders. Moreover, the respondents' conduct, as evidenced by the affidavits sworn by the applicant's solicitor, Mr Tye, indicates that they are unlikely to co-operate in any further court processes and meet any liability for costs in an efficient and appropriate way. There is evidence, as in a further affidavit of Mr Tye sworn on 30 March 2012, that the respondents' failure to progress the litigation or to comply with Court orders is on-going, notwithstanding the service of these orders and the applicant's continued attempts to communicate with the respondents. There is no evidence as to the respondents' financial position save that the evidence indicates that the business in question is relatively small and that the proposed costs orders may be significant in this context: compare Hadid v Lenfest Communications Inc [2000] FCA 628 at [25]-[27]. In all the circumstances, in order to avoid a further waste of time and money that the applicant may not be able to recoup readily from the respondents or at all, I consider it appropriate to make a lump sum costs order. 18 The starting point for the fixing of costs is the charges rendered by the applicant's solicitors: Beach Petroleum at 124 and Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [820] per Beazley JA (with whom Giles and Whealy JJA agreed). The sum of costs fixed should also be proportionate to the nature, including the complexity, of the case: see Canvas Graphics Pty Ltd v Kodak (Australasia) Ptd Ltd [1998] FCA 23. As Beazley JA said in Hamod, at [820], citing, amongst others, Beach Petroleum at 123: The approach taken to estimate the costs to be ordered must be logical, fair and reasonable … . This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment … . (Citations omitted.) 19 The applicant seeks a lump sum for costs of $47,279.94, comprising $5,931.42 on a solicitor and own client basis for the period 18 November 2011 to 13 December 2011 (inclusive) and $20,928.81 for the balance of the period ending 24 February 2012 and $20,419.71 for disbursements. This is based upon the affidavit of Mr Tye sworn on 23 March 2012. 20 I accept that Mr Tye is a legal practitioner with experience in the taxation of costs, and that he has made sufficient inquiries properly to form an opinion as to the costs incurred by the applicant and allowable on a lump sum basis. Further, I accept that, as Mr Tye deposed, since the legal work for the applicant was undertaken after 1 August 2011, the cost scales under Schedule 3 of the Rules apply. 21 Mr Tye's calculation included: (a) an additional allowance of 10% (under item 11 of Schedule 3); and (b) a reduction of 17.5% in the lump sum assessment of party and party costs. Mr Tye deposed that the additional allowance was sought to take account of the circumstances that "the subject matter of the proceeding is reasonably complex, the subject matter of the proceeding is relatively specialised in the Intellectual Property area, and the steps required to be taken were made more difficult and time consuming due to the lack of co-operation and non appearance of the respondents". I accept that the allowance sought is properly made under item 11 of Schedule 3 in the circumstances of the case. I also accept that the relatively limited reduction of 17.5% is appropriate in the circumstances of the case, having regard to the fact that the costs were incurred in a short time period and did not involve a significant number of interlocutory procedures or attendances, or extensive instructions to be sought from the applicant. 22 Also added to Mr Tye's calculation were reasonable and proper disbursements, including ASIC search fees, photocopying/printing, courier fees, court fees, process service fees, faxes, travel costs and counsel fees. 23 It must also be borne in mind that, in making a lump sum costs order, the Court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: see Harrison v Schipp (2002) 54 NSWLR 738 per Giles JA at 743 [21]-[22]; Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] per Lehane J; and Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5 per O'Loughlin J. Indeed, to do so would defeat the purpose of making a lump sum costs order. Adopting a less exacting approach than would be applied on taxation, but bearing in mind that there is only Mr Tye's evidence before the Court and that the Court must be astute not to cause an injustice to anyone including the respondents, I am satisfied that Mr Tye has not calculated costs in an excessive amount. 24 Accordingly, I would fix the applicant's costs in the sum of $47,279.94, which comprises: (a) $5,931.42 determined on an indemnity basis for costs incurred by the applicant in the period from 18 November 2011 to 13 December 2011 inclusive; (b) $20,928.81 determined on a party and party basis for costs incurred by the applicant in the period from 14 December 2011 to 24 February 2012 inclusive; and (c) $20,419.71 for disbursements. I would reserve the applicant's costs of the proceeding incurred after 24 February 2012. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.
Bitek Pty Ltd
IConnect Pty Ltd
(2001) 115 FCR 229
(1993) 46 FCR 225
(1996) 72 FCR 151
(2002) 188 ALR 659
(1995) 57 FCR 119
(2002) 54 NSWLR 738
(1999) 93 FCR 1
The respondents pay the applicant's costs on an indemnity basis from 18 November 2011 to 13 December 2011 and on a party and party basis from 14 December 2011 to 24 February 2012, fixed in the lump sum of $47,279.94; costs after 24 February 2012 reserved.