House & Anor v Queanbeyan Community Radio Station [2009] FMCA 723

QUEANBEYAN COMMUNITY RADIO STATION QBN-FM INCORPORATED

1. On 25th September last year I delivered judgment in these proceedings. After making certain declaratory and other orders I made what might be described as `the usual order' regarding costs, whereby the unsuccessful party (the Respondent) was ordered to pay the successful parties' (the Applicants') costs.
2. There was no argument in the course of the trial, nor were any submissions made, in relation to costs.
3. I am asked now to make certain other orders in relation to costs. They might be described, on one view, as administrative. On another view, that which was advanced by Mr Travers, who I understand to have been instructed by the Respondent's solicitors, I can make no further orders in the matter, including matters relating to costs, because I am functus officio. A third approach, which was (to some degree) advanced on behalf of the Applicants, is that I was not functus officio and that I could make further orders in relation to costs.
4. The respective positions of the parties in relation to the current application in relation to costs may be summarised as follows:
   1. The Applicants contend that I should certify for Counsel (under rule 21.15) and that otherwise the matter should be referred to a Registrar for taxation.
   2. The Respondent's position is somewhat more complex. First, as already indicated, Counsel for the Respondent contends that I am functus officio and therefore I have no jurisdiction to make any further orders, including in relation to costs. Secondly, and alternatively, it was submitted that if I determined that I could make further orders - either under the slip rule and or as a supplementary order, or otherwise - as a matter of discretion I should not certify for Counsel or, if I was minded to exercise my discretion, it could (or should) be only for costs in accordance with the Scale allowed by this Court.
   3. Thirdly, the Respondent's Counsel argued that his submissions were supported, as a matter of principle, by the objects of this Court to provide the most efficient and cost-effective process of justice. In his submission, as determined by the Respondent, the case was of a kind that could have, and should have, been conducted by an experienced attorney rather than by Counsel. This was evidenced by virtue of the fact that the conduct of the Respondent's case was by a solicitor only, Mr Bevan. Against this argument one might observe, hopefully not unkindly, that that judgment was not borne out by the result.
   4. There is one further curiosity about Counsel's argument on behalf of the Respondent. As already indicated, Mr Travers contended that the case was not such as to warrant the applicants to have briefed counsel. The substantive hearing ran for a number of days. Yet the case would now appear to be sufficiently complex in relation only to costs as to warrant Mr Travers to be instructed to appear on behalf of the Respondent.
5. Some general observations are important. First, the statutory and regulatory powers of the Court in relation to costs are prescribed by s.79 of the Federal Magistrates Act 1999 (Cth) and Part 21 of the Federal Magistrate Court Rules 2001. In large measure, s.79 mirrors s.43 of the Federal Court Act 1976. Therefore, should any further reference be required, the jurisprudence on s.43 I take to be directly relevant to any determination of matters under s.79.
6. As well, Part 16 in relation to judgments and orders is also directly in play. In particular, rule 16.05 is a central focus of the current application. Rule 16.05 (1) provides that the Court may vary or set aside its judgment or order before it has been entered. Rule 16.05(2) provides that the Court may vary or set aside its judgment or order after it has been entered if, according to rule 16.05(2)(e), the order does not reflect the intention of the Court, or according to rule 16.05(2)(f), the party in whose favour the order is made consents. Unsurprisingly, the applicants readily consent to a supplementary order (if such is deemed necessary) in relation to the costs orders they seek.
7. The following further observations are apposite. They fall into two categories: (a) principles in relation to costs orders; (b) principles in relation to judgments and orders. Two High Court cases set out the basic principles in relation to costs orders. They are Latoudis v Casey and Oshlack v Richmond River Council.[1] For current purposes, it is sufficient to note the observations of Mason CJ in Latoudis (at p.542-43). The comments of the Chief Justice in Latoudis were repeated and endorsed by McHugh J in Oshlack, at p.102:
   • Mason CJ, Toohey J and I were all of the view that one starts with the proposition that a successful party to litigation (the defendant in Latoudis) can usually expect to receive a costs award in its favour unless its own conduct disentitles it from the benefit of the discretion. It is the conduct of the successful party, and not the conduct or motives of the unsuccessful party, which is relevant to the exercise of the costs discretion. Thus Mason CJ said:
   • "in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings". [Internal citations omitted.]
8. More specifically, two decisions of the NSW Supreme Court are directly on point. In TA Field Pty Ltd v Frigmobile of Australia, the Court said:[2]
   • In my opinion, it is implicit in an order that a party pay costs (in the amount thereafter ascertained by taxation) that the order is to take effect from the date when the costs are taxed. It is not necessary for the judge or master when making the order (or directing entry of the judgment containing the order) to use words to the effect "And I further order that the order that the defendant pay the plaintiff's costs take effect from the date of the ascertainment of the amount of those costs by taxation." That, in my opinion, is implicit in the very nature of the order. The party ordered to pay costs cannot commit any breach of that order by not paying until the amount of the costs is ascertained. Until then there is nothing to pay. Indeed, unless taxation is proceeded with and a certificate of taxation obtained, nothing ever becomes payable.
9. It would also appear from the later judgment from the same Court in Fischer v David Syme & Co Ltd,[3] that an unfulfilled order - such as that the defendant pay costs of the successful plaintiffs in that case - was subsequently ordered to proceed to a taxation essentially as a matter of course without any further order. The further and more direct question in that case, but which is not relevant here, concerned whether interest should be payable on the costs ultimately awarded, following the taxation.
10. From these decisions, in my view, it is plain that the order made on 25th September 2008 necessarily implied that the costs awarded were to be agreed, and in the event that agreement was not reached - as has occurred - it should proceed to a taxation of the costs sought.
11. In further support of this course to bring this matter as quickly as possible to its most expeditious resolution, in the alternative, the same result could be achieved by a number of other routes. For example, under its inherent power, the Court may amend the orders formally to reflect the implication that the matter proceed to a taxation in the event that costs could not be agreed. There is abundant authority for such power, beginning with, for example, the old High Court decision in Ivanhoe Gold Corporation Ltd v Symonds.[4]
12. Under the rules of this Court, there is, in my view, ample scope and regulatory authority - particularly under the Rules already noted - to amend the original orders, either under the slip rule or by a supplementary order. This is especially so where, as here, there was no formal argument about costs until this current application, many months after the original judgment and orders. And as indicated by the High Court in Bailey v Marinoff,[5] once a judgment had been perfected, it cannot be revisited by the same Court unless the Court's intention is not properly expressed. It was certainly my intention that the usual order carried with it the necessary implication to which the NSW Supreme Court referred in Field v Frigmobile. That is, in the event that costs were not agreed, that issue would and should proceed to a taxation without further ado.
13. The same principle articulated by the High Court in Bailey v Marinoff was accepted and applied by the Full Court of the Victorian Supreme Court in Arnett v Holloway.[6] In that case the entered orders were amended to give the plaintiff his taxed costs on the relevant court scale.
14. The Privy Council has taken a similar stance in relation to a judgment in which there was no formal application for interest. In Tak Ming Co Ltd v Yee Sang Metal Supplies Co,[7] the Privy Council confirmed that to order interest after the entry of the judgment was a proper exercise of discretion under the slip rule.
15. For all of the above reasons the matter should proceed to a taxation in relation to the costs ordered in the applicants' favour on 25th September 2008. If it becomes absolutely necessary I will make a supplementary order to this effect.
16. On the question of whether there should be certification for Counsel, in my view, there should be such a certificate for each of the days of the trial.
17. In my view, (a) having regard to the observations of the High Court in Latoudis, (b) the considerations regarding the objects of this Court in relation to what might be referred to in a short-handed way as justice delivered as economically as possible in the circumstances, and (c) having regard to the respondent being a community radio station with quite modest assets, Counsel's fees for which certification is granted, and all other costs, should, so far as possible, be in accordance with the scale costs of this Court.
18. In relation to the costs of the `costs application' itself, in my view, having regard to all matters set out in the principal judgment, and in what I have canvassed here, there should be a further order in favour of the applicants for their costs of the application, but in the sum of $750.00.
19. I note that Mr Travers, for the Respondent, has indicated that, following these reasons being read in Court, it was not necessary that any further orders would be required either as to certification for Counsel or in relation to the matter now proceeding to taxation, in the event that agreement was unable to be reached.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Neville FM

[1] [1990] HCA 59; (1990) 170 CLR 534 and [1998] HCA 11; (1998) 193 CLR 72 respectively.

[2] [1978] 2 NSWLR 488 at p.492.

[3] (1989) 18 NSWLR 606.

[4] [1906] HCA 71; (1906) 4 CLR 642. See in particular the observations of Griffith CJ at pp.658-659, and Higgins J, at p.669.

[5] [1971] HCA 49; (1971) 125 CLR 529.

[6] [1960] VicRp 6; [1960] VR 22.

[7] [1973] 1 WLR 300.