Cameron v Secretary, Department of Human Services

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 On 19 August 2015, I dismissed the applicant's appeal from a decision of the Administrative Appeals Tribunal: Cameron v Secretary, Department of Human Services [2015] FCA 875. I ordered the applicant to pay the respondent's costs. 2 Rule 40.02(2)(b) of the Federal Court Rules 2011 provides that a party or a person who is entitled to costs may apply to the Court for an order that costs be awarded in a lump sum instead of, or in addition to, any taxed costs. On 8 October 2015, the respondent filed an interlocutory application seeking orders that: (a) Costs be awarded in the lump sum of $6,500.00 instead of taxed costs for work up to 19 August 2015; (b) The applicant pay the respondent's costs of applying for lump sum costs; and (c) Costs be awarded in a lump sum of $1,500.00 instead of taxed costs for work since 19 August 2015. 3 I have been informed this morning by Dr Thompson, who has had carriage of the proceeding for the respondent, that the sum of $1,500.00 refers to professional costs only and does not include the filing fee for the interlocutory application, being the sum of $455.00. The respondent seeks to amend its interlocutory application to include that sum so that the lump sum costs sought in respect of work since 19 August 2015 would be in total $1,955.00. I will treat the interlocutory application as having been so amended. 4 The interlocutory application has been set down for hearing today. The applicant has been given notice of the hearing. He has not appeared. The interlocutory application is supported by an affidavit made by Dr Thompson. This affidavit sets out, amongst other things, the background to the proceeding and certain correspondence between the respondent's solicitors and the applicant on the question of costs, following the giving of judgment on 19 August 2015. The affidavit sets out the steps taken by the respondent in calculating the costs sought as a lump sum. 5 In Nine Films & Television Pty Limited v Ninox Television Limited [2006] FCA 1046, Tamberlin J said (at [8]): [8] In fixing a lump sum, the exercise is one of estimation or assessment and not of arithmetic calculation or precision. As pointed out in Harrison v Schipp (2002) 54 NSWLR 738 at [22], the rule contemplates the application of a much broader brush than that applied on taxation. The approach must be logical, fair and reasonable, and should only be exercised when the Court considers that it can do so fairly as between the parties. 6 I have been the docket judge for this proceeding since its commencement. I have gained an appreciation of the extent of the work that would have been required to prepare the appeal for hearing and to conduct that hearing on behalf of the respondent. The amount sought for work up to 19 August 2015 is, in my estimation, a relatively modest sum for that work. On the basis of Dr Thompson's affidavit evidence, I am satisfied that the sum of $6,500.00 claimed for work up to 19 August 2015 is less than the amount that is likely to be awarded should the respondent's costs in respect of that period be taxed on a party/party basis. It is appropriate that a lump sum order be made in that amount for those costs. 7 Following the hearing, the respondent's solicitors communicated with the applicant in an attempt to reach agreement on costs. Specifically, in a letter to the applicant, the respondent sought the sum of $6,500.00. At that time, the respondent informed the applicant that, failing agreement to pay the costs as sought, one course which the respondent might pursue would be to make the present application at additional cost to the applicant. The applicant's response was to state that he would not be paying "any of the legal fees that Centrelink incurred with you". This response required the respondent to undertake further work to have its costs assessed - in this case, as part of the present interlocutory application. Inevitably, this involved further time and expense on the respondent's part. 8 I am satisfied that the further lump sum costs of $1,955.00 that are sought for that period do not exceed the amount that is likely to be given on a taxation for party/party costs in respect of that work, including the making of the present application. 9 In light of the amounts sought, I am satisfied that it is appropriate to award the lump sums so as to avoid what might well be the relatively disproportionate cost, inconvenience and delay in proceeding to a taxation. It will also bring this proceeding to finality in a way that is just, fair and efficient. 10 Accordingly, orders as sought, with the modification to which I have referred, will be made. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.