Owen-Pearse v Lander Land Company Pty Ltd

1. The plaintiff pay the defendant's costs of the proceedings commenced by application dated 3 October 2018 fixed in the amount of $5,000 (exclusive of GST). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 On 20 December 2018 I dismissed the plaintiff's application for an extension of time to review the decision of a Registrar of this Court: Owen-Pearse v Lander Land Company Pty Ltd [2018] FCA 2077. The defendant, Lander Land Company Pty Ltd, was entirely successful in opposing the application and further, I found that the application determined by the Registrar comprised an abuse of process on the part of the plaintiff. 2 At the time that I published my reasons, I reserved the question of costs and I invited the parties to file any submissions by 31 January 2019, indicating I would then determine the costs on the papers. Submissions were received from the defendant, but not the plaintiff. 3 The defendant seeks a fixed costs award of $5,000 (exclusive of GST), which was the fixed fee that the defendant's solicitors, Blackwell Legal LLP (Blackwell) agreed to charge their client (the defendant) for the conduct of the review application. 4 Mr Pearce, the managing partner of Blackwell, provided evidence by affidavit as to the work undertaken by his employed solicitor, Mr Spillane. Mr Spillane had the main carriage of the matter and appeared before me on the case management hearings and the final hearing. Mr Spillane prepared a comparison table of the work conducted by Blackwell against the costs set out in Schedule 3 of the Federal Court Rules 2011 (Cth). According to the comparison table (included in Mr Pearce's affidavit), the costs that would have been incurred by the defendant if Blackwell's usual fees were charged comprised a total of $12,550.50 for 35.9 hours work. The maximum scale permissible costs for the work comprised a total of $16,584.00. 5 I have reviewed the comparison table. I am also aware from my involvement in the matter that the application involved some questions that were not without difficulty. In my view, the items claimed in the comparison table are reasonable. It follows that the fact that the defendant seeks a fixed costs order of only $5,000 to reflect its agreement with Blackwell evidences an entirely reasonable, in fact generous, approach on the part of the defendant and Blackwell. 6 Under s 43(2) and s 43(3) of the Federal Court of Australia Act 1976 (Cth) I have a general discretion to award costs. The discretion must be exercised judicially, having regard to the relevant principles and the justice of the case in all the circumstances. 7 Having regard to the relevant principles and the defendant's evidence as to costs, I order that the plaintiff pay the defendant a fixed costs award of $5,000, exclusive of GST. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.