Kirunda v Commissioner of Police, New South Wales Police Force

1. The applicant is to pay the respondent's costs of and incidental to the interlocutory application filed on 2 December 2016, in the amount of $11,720.33. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 Judgment was published in this matter on 30 June 2017 (see Kirunda v Commissioner of Police, New South Wales Force [2017] FCA 735 (Kirunda No 1). On 21 July 2017 the Court delivered a separate judgment, which ordered the applicant to pay the respondent's costs of his interlocutory application filed on 2 December 2016 (Kirunda No 2). The respondent belatedly sought a lump sum costs order. 2 Orders were made on 21 July 2017 which required the respondent to file and serve an affidavit specifying the lump sum amount it sought in relation to costs and the justification for that amount, together with a brief written submission. The applicant was afforded an opportunity to file and serve any affidavit in response, together with a brief written submission. The parties were informed that the issue of a lump sum costs order would be determined on the papers. 3 On 28 July 2017, the respondent filed and served a brief outline of submissions and an affidavit by his instructing solicitor, Ms Kathleen Anne Plowman affirmed on that day. Ms Plowman, who has practised as a solicitor for 16 years, described the work undertaken by her firm in respect of the interlocutory application as well as details concerning the various solicitors who were involved in the matter, including the hours they worked and their charge-out rates. Ms Plowman also described the history of the applicant lodging objections and appeals in respect of earlier costs orders. 4 Ms Plowman described how relevant searches revealed that the applicant was not the registered owner of any property or business and that there was only limited evidence available as to his financial circumstances, save that he has apparently been unemployed since 2013 and is in "a dire financial situation". 5 After stating that, based on her experience, assessments usually return 65-70 percent of actual costs, Ms Plowman said that her client was seeking 50 percent of its costs as a lump sum, amounting to $11,720.33. 6 On 11 August 2017, the Court extended the time for the applicant to file and serve material on the issue of a lump sum costs order. Three days after that extended time, my associate received an email dated 28 August 2017 from the applicant. The applicant copied in the respondent's solicitors. 7 The email read (without alteration): With apologies, I make these submissions by email due to failure to access public printing facilities at the location I am currently. I request that the order is made to pay in installments over 3 years. I am currently unemployed and unable to work. I have ongoing obligations to pay a personal loan and for storage of my property as indicated in the attached loan statement and invoice from Kennard's Storage in addition to daily living and medical expenses. I pray that the court will take this into consideration. 8 The applicant attached to his email a copy of an invoice from a storage company. The invoice was for the period 10 August 2017 to 10 September 2017. The invoice revealed that the applicant was required to pay a late fee of $15.00 presumably for a late payment and that he had made a payment of $225.00 by direct deposit on 18 August 2017. The outstanding balance was $205.00. 9 The applicant also attached a document entitled "personal loan statement" for the period 1 January 2017 to 30 June 2017. It disclosed that, as at 30 June 2017 the applicant had a loan debt of $25,539.56 and that he had made monthly payments of $450.00 in each of the six months in the period January-June 2017 inclusively. 10 It is notable that the applicant has not provided any particulars of the "daily living and medical expenses" which he currently experiences. The applicant has also failed to produce an affidavit relating to the lump sum costs issue. 11 It is evident from the applicant's email dated 28 August 2017 that, rather than opposing the making of a lump sum costs order, the applicant seeks to have a payment arrangement. 12 In my respectful view, this is an appropriate case to make a lump sum costs order having regard to the terms of Pt 40 r 40.02(b) of the Federal Court Rules 2011 (Cth), the matters described above, the absence of opposition by the applicant to the making of such an order, and the general principles as described in Beach Petroleum NL v Johnson (No 2) [1995] FCA 350; 57 FCR 119 at 120 per Von Doussa J. Many of the considerations which are relevant to the exercise of the discretion were helpfully summarised by Murphy J in his paper entitled "The Problem of Legal Costs: Lump Sum Costs Orders in the Federal Court" delivered at the National Costs Law Conference in Melbourne on 17 February 2017 (footnotes omitted): it is no impediment to the granting of a lump sum costs order that an earlier order has been made ordering a taxation of costs; the chief purpose of the jurisdiction to award lump sum costs is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation of costs. Exercise of the discretion is particularly apt in a lengthy and complex case where the process of taxation is likely to be unduly protracted or expensive; there is, however, no particular characteristic of a case which must exist before a lump sum costs order can be made. It is a power which may be exercised whenever the particular circumstances of the case warrant it. The simplicity of a case may make such orders appropriate to save the parties the difficulties and convenience of a taxation or the complexity of the case, where the costs of taxing a bill might be quite considerable, may do so; where the financial capacity of the unsuccessful party is such that the successful party is unlikely to recover the costs of a taxation, where the unsuccessful party's assets are outside the jurisdiction, or where the unsuccessful party has a tendency not to comply with costs orders, the case for a lump sum costs order is more compelling; a lump sum approach may be appropriate where one party has a tendency to litigate (generally without basis) and would likely abuse the taxation process; the Court may take into account that the costs should bear some relationship to the size of the applicant's victory and should be proportionate to the nature and importance of the case; it is inconsistent with the objectives of a lump sum order that the costs be subject to the detailed scrutiny normally reserved for formal taxations. It has been said that the lump sum process gives efficiency at the expense of accuracy. The Court shall adopt a broad brush approach to fixing costs, shall not approach the task as one of arithmetic calculation or precision. Courts usually apply a discount to the amounts claimed, but the award must rest on the particular circumstances and on the evidence adduced; to ensure that a weaker party is not disadvantaged by a lump sum costs order the Court may adopt a careful and conservative approach to fixing the costs; exercise of the discretion carries the duty to accord procedural fairness (or natural justice) to the litigants; the Court must be confident that the approach taken to estimate costs is logical, fair and reasonable; evidence from an independent costs consultant may prove useful for the purpose of fixing lump sum costs, although a judge is by no means bound by it. Evidence of the charges rendered to the party awarded costs is also highly relevant. 13 Most of these considerations are present in this case and there are no compelling countervailing considerations. Accordingly, the lump sum costs order sought by the respondent should be made. In my respectful view, it is a matter for the applicant to raise with the respondent the possibility of him paying the amount by way of instalments. In view of the state of the applicant's current evidence which may be relevant to this matter, I do not consider that there is sufficient material before the Court to warrant the making of such an order. It is entirely a matter for the respondent to consider whether it is willing to enter into such an arrangement. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.