(5) The power to make a fixed sum costs order should only be exercised when the Tribunal considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available, Hamod at [813], Kostov at [23];
41. Examples of the type of material that should be available if a fixed sum costs order is to be made can be found in the decisions in Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54 at [7] and SAB Closed 1 Pty Ltd v Bees & Honey Pty Ltd; Bees & Honey Pty Ltd v SAB Closed 1 Pty Ltd [2015] NSWSC 1162 at [10]. The types of supporting material usually required include:
(1) the timing and nature of costs incurred, including details of the work done, the hours worked, the hourly rates actually charged and, in the case of counsel's fees, similar details concerning the work done by counsel;
(2) the rates at which counsel, other lawyers and other professional advocates, if relevant, charge; and
(3) the amount likely to be recoverable on assessment in the event that that took place, which may be established by "objective arm's length evidence from a costs assessor" (to use the language of Stevenson J in SAB Closed 1 at [10].
- In Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294, Beazley P, Meagher and Payne JJA set out the principles in relation to a fixed costs order at follows [12] - [18]:
[12] The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123.
[13] The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing).
[14] A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7].
[15] The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814].
…
[18] The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamod v State of New South Wales at [816]-[817] is apposite
- The Respondent sought a lump sum figure of $60,000 for its costs.
- The Affidavit of Tram Nguyen dated 11 November 2021 annexed an extract from the Crown Solicitor's legal practice management software of all time entries directly attributable to responding to the Applicant's application for administrative review in the Tribunal, responding to the Applicant's interlocutory applications, applying for summons to be issued after the applicant failed to provide relevant documents, and dealing with the Applicant's non-compliance with Tribunal orders. The total cost of those time entries was $51,163.08. Having reviewed that extract I note that the time entries are attributable to seven different fee earners, with rates ranging from $145.20 per hour to $460.20 per hour, between the period 19 February 2020 and 10 November 2021. The Affidavit also annexed copies of the Respondent's disbursements spreadsheet which included entries for travelling to file documents, filing fees, sound recording fees and transcription services totalling $1789.10 and counsel's invoices for advice and appearances between 2 March 2021 and 16 July 2021 totalling $18,840 at $240 per hour.
- A further affidavit of Ms Nguyen dated 1 March 2023 added further legal costs incurred by the Respondent between 11 February 2021 and 1 March 2023 directly attributable to dealing with the Applicant's non-compliance with the Tribunal's orders or directions, and progressing the hearing of the costs application. The total cost of those time entries was $3744. I note that those time entries are attributable entirely to Ms Tran as a fee earner at a rate of $360 per hour. Counsel's invoice of 21 December 2021 to settle the Respondent's evidence and submissions for the costs hearing was $1200 at $240 per hour. Ms Nguyen also anticipated a further cost of $2560 for both herself and counsel to appear at the in-person hearing on 8 March 2023.
- The evidence before me demonstrates that the Respondent's total costs of defending these proceedings, including the costs of this costs application, were $79,296.18, comprising $54,907.08 in timed entries by the Respondent's solicitors, $21,829 in disbursements including $20,040 in counsel's fees, and an additional $2560 for the appearance of the Respondent's solicitor and counsel at the hearing of the costs application.
- The Respondent submitted that it would be appropriate for the Tribunal to make a lump sum costs order on the basis that the applicant is unlikely to be able to satisfy any costs liability, including that arising from costs assessment. It submitted $60,000 for its costs was fair and reasonable, which was a discount of 24.3% of the costs actually incurred, in line with the impressionistic discount referred to in Skybloo Holdings at [40(4)] and Hamod at [820].
- In my view the scale and complexity of the costs being sought militate against an impressionistic discount being applied to the costs incurred by the Respondent, and the award of a lump sum costs order. Pursuant to s 60(4)(b) of the CAT Act, I order costs to be as agreed or assessed.