Grimaldi v Chameleon Mining NL

REASONS FOR JUDGMENT 1 The appeal in Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 was conducted over eight days. Ultimately Mr Grimaldi's appeal was dismissed with costs. An application for special leave to appeal to the High Court was unsuccessful. On 11 December 2013 Chameleon Mining NL's ("Chameleon's") solicitors filed a bill of costs with the Court claiming an amount of $624,223.25 for its costs and disbursements of the appeal brought by Mr Grimaldi. This bill of costs was served on Bridges Lawyers on 7 January 2014. That firm had instructions to accept service of such a bill but were not then on the record. On the record instead was Mr Martin Woods of M J Woods & Co who had represented Mr Grimaldi in the appeal itself. 2 Upon receipt of a bill of costs Federal Court Rule ("FCR") 40.20 provides for the taxing officer to make an estimate of the appropriate total for which a certificate of taxation is likely to issue before embarking upon the burdens of taxation. Once the estimate is issued the parties have twenty-one days in which to object (FCR 40.21(1)) at which time, if they have not, a certificate of taxation issues in the amount of the estimate (FCR 40.20(4)). Such a certificate when issued has the force and effect of an order of the Court (FCR 40.32(2)). 3 In this case, the taxing officer issued an assessment on 3 February 2014. A copy of it was certainly sent to Chameleon's solicitors because there is no question but that they received it. The copy they received shows that it was also addressed to M J Woods & Co at Level 4, 50 Park Street, Sydney. Here matters get a little complex. Although Bridges Lawyers had accepted service of the bill of costs they had not filed a notice of change of solicitor as required by FCR 4.04(1) at this time. 4 There is some evidence, to which I will return, that Mr Woods did not receive the estimate. Certainly Mr Grimaldi says that he was unaware of it until the morning of 7 March 2014. On 5 March 2014 the Court issued a certificate of taxation in the amount of $477,900, being the amount of the estimate. This occurred because 21 days had passed since the issue of the estimate and because no party had objected to it. Chameleon's solicitors then sent the certificate, on 7 March 2014, both to Mr Woods (who was on the record) and Bridges Lawyers (who were not) demanding payment of the $477,900 by Wednesday 12 March 2014. 5 As matters then appeared to Bridges Lawyers, one possible explanation for how this unfortunate state of affairs had occurred was that Mr Woods had received the original estimate (since he was on the record) but had failed to bring it to anyone's attention. However, a solicitor from Bridges Lawyers spoke with Mr Woods and, shortly afterwards, on 8 March 2014 received an email from him which read: 'I refer to our recent telephone conversation. I have not sighted the Courts Notice of its preliminary assessment and can find no record of this document being received into our office.' 6 Bridges Lawyers then sought to persuade Chameleon's solicitors to consent to the setting aside of the certificate of taxation. Those efforts were unsuccessful. On 28 March 2014, Mr Grimaldi then filed the present application to set aside the certificate of taxation. 7 Because of FCR 40.32(2) the certificate of taxation has the effect of an order of the Court. It does not necessarily follow that it is an order of the Court (so that it can be set aside as an order) but the parties were content to assume that it was and I proceed accordingly. 8 In correspondence and in argument before me Chameleon's representatives asserted that Mr Grimaldi's application was under FCR 39.05(a) which permits the setting aside of an order or judgment which 'has been entered' if '(a) it was made in the absence of a party'. This was also Mr Grimaldi's position. FCR 39.05(c) permits the setting aside of interlocutory orders. There was no submission made to me that a certificate of taxation was interlocutory. 9 The certificate of taxation was signed by a Deputy District Registrar and had affixed to it the seal of the New South Wales District Registry of the Court. If it was an order, it was therefore entered: FCR 39.35. Accordingly, I proceed on the basis that the application was made under FCR 39.05(a). 10 Mr Withers of counsel, who appeared for Chameleon, submitted that it was necessary for Mr Grimaldi to prove: first, that he had not received the estimate; and, secondly, that there was some reason to believe that if now allowed to contest Chameleon's bill of costs that he would achieve some reduction of it. Mr Withers submitted that Mr Grimaldi could succeed on neither count.