Odzic v Commonwealth of Australia

1. The applicants pay the respondent's costs of their interlocutory application for a stay in the specified sum of $8,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 These reasons concern an application by the respondent for costs to be awarded to it in a specified sum. They are to be read with my judgment and orders in Odzic v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 439, given and made on 5 May 2017. 2 Section 43(3)(d) of the Federal Court of Australia Act 1976 (Cth) provides that, without limiting the discretion of the Court in relation to costs, the Court may award a party costs in a specified sum. Rule 40.02(b) of the Federal Court Rules 2011 (Cth) provides that a party 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. 3 The orders I made first on 5 May 2017 were as follows: 1. The applicants' interlocutory application dated 11 April 2017 to stay the orders of the Full Court of the Federal Court made on 2 March 2017 is dismissed. 2. The applicants pay the respondent's costs of and incidental to that interlocutory application, as agreed or assessed. 4 On my pronouncement of those orders the respondent applied for the opportunity to make an application that there be a lump sum costs order made. I then made the following orders. 3. Grant liberty to either party to apply for the costs referred to in Order 2 made today to be awarded in a specified sum. 4. The respondent's application and a one page submission to be filed by 12 May 2017 and its affidavit in support to be filed and served by 5 May 2017. 5. The applicants to file and serve any affidavit in answer to the respondent's affidavit and a one page submission by 19 May 2017. 6. The application is to be determined on the papers. 5 The affidavit on which the respondent relied was that affirmed by Benjamin James May, Senior Lawyer, on 5 May 2017. Mr May set out the basis for claiming legal fees of $5,220 and disbursements totalling $3,794.60. 6 The applicants filed no affidavit in response. 7 The respondent's application was for that the costs of the stay application be awarded in the specified sum of $9,000. The submission was that the additional cost of taxation would be likely to impose a significant cost burden on the respondent without any certainty of recovery from the applicants. It was submitted that the respondent was unreasonably obliged to incur additional costs by the applicants bringing, in effect, a second application for a stay after the refusal of a stay by Griffiths J in Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 329. It was also submitted that a review of the affidavit of Mr May disclosed that the amount claimed by the respondent had been heavily discounted: the $9,000 claimed being the (rounded down) total of the nominal figure of $5,220 for solicitors' fees and disbursements of the amount of $3,794.60. It was submitted that the figure of $9,000 was proposed with the aim of expediency and so that the Court could be confident without assessment that the claim was reasonable and well within the sum that would be claimable through the assessment process. It was submitted that the rates charged by the respondent's counsel were towards the lower end of the range provided for in the Court's National Guide to Counsel's Fees. It was submitted that the lump-sum claimed covered disbursements and a portion only of the solicitors' costs properly incurred. 8 The application was opposed by the applicants on the following bases: a. the amount claimed is excessive; b. the claim should be referred for assessment by a registrar or cost assessor; c. no vouchers have been produced in support of the claim; d. the residential tenancy jurisdiction of NCAT being exercised by the FCCA is a non-costs jurisdiction [see Civil and Administrative Tribunal's Act 2013 NSW section 64] except in cases of special circumstances and there are no special circumstances argued for or available; e. all the circumstances of the case. 9 In my opinion much of the opposition to the respondent's claim proceeds upon a misconception. The claim relates only to the application for a stay in this Court, pending the determination of the applicants' application for special leave to appeal to the High Court. It has nothing to do with the jurisdiction of the Federal Circuit Court of Australia. Neither does it have anything to do with the respondent's claim in the originating applications in the Federal Circuit Court of Australia. It follows that the submission that "the Court should order each party to pay his or her own costs of the proceedings before the Court sitting as the FCCA" is not to the point. This Court is not sitting as the FCCA. The question of whether or not the Court should make a costs order is not the present issue. The present issues are only whether the costs I have ordered the applicants to pay should be awarded in a specified sum and, if so, what sum. The written submissions on behalf of the applicants do not in terms address that question. I also note that many of the submissions on behalf of the applicants are made without evidence. The applicants' submission does not suggest that the respondent has not complied with the Court's Costs Practice Note (GPN-COSTS), in particular the applicants did not suggest that the respondent had not complied with paragraph 4.10 of that Practice Note stating that the Costs Summary filed by the respondent should succinctly address the relevant matters set out in Part B of "Annexure A - Guide for Preparing a Costs Summary" and must also verify the matters set out in Part A of Annexure A. 10 I reject the submission that the claim should be referred for assessment. The Court is in a position to form its own view. For the same reason, I also reject the submission that the claim for a lump sum costs order should be refused on the ground that no vouchers have been produced in support of the claims. As required by the Practice Note, the respondent's affidavit in support of the claim states that the amounts claimed are capable of further verification through source material should such material be required by the Court to be produced. 11 Bearing in mind the small compass of the stay application and the precept that the procedure for determining the quantum of costs should be as inexpensive and efficient as possible, I consider that this is an appropriate case to award costs in a fixed sum. 12 In arriving at the fixed sum I again bear in mind the small compass of the stay application and the importance of the Court being confident that the claim is well within the sum that would be claimable through the assessment process. In my opinion the fixed sum should be $8,000. 13 I so order. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.