Shurat HaDin, Israel Law Center v Lynch

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2235 of 2013

GREEN FREEDOM LIMITED (ISRAEL COMPANY NUMBER 514 331 479)

JUDGE: ROBERTSON J DATE: 14 NOVEMBER 2014 PLACE: SYDNEY

Introduction 1 Certain orders in relation to a notice of estimate of costs were made by a Registrar on 7 August 2014. There is before me an application for review, pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) and r 3.11(1) of the Federal Court Rules 2011 (Cth), of orders 1, 2, 3, 4 and 5 of those orders. The application was filed on 27 August 2014. It was common ground before me that the Court, when conducting such a review, is conducting a hearing de novo. 2 The application is brought by the fifth applicant, Green Freedom Limited. The first applicant appeared by telephone from New York but took a neutral position. The second, third and fourth applicants did not appear. Mr Hamilton is the fourth applicant and the solicitor for the fifth applicant. 3 As will be seen, the amount in dispute must be relatively modest (the Registrar's estimate was in the amount of $24,300) and it is unfortunate that it has been necessary to have a contested interlocutory hearing before me in circumstances where, as at the date of the filing of the application for review, the rights and interests of the fifth applicant have not been adversely affected.

Chronology 4 The chronology of events is as follows. 5 On 24 April 2014 the Court made the following orders: 10. The applicants pay the respondent's costs of and incidental to the interlocutory application to strike out the statement of claim. 11. The respondent may immediately tax the costs the subject of order 10. 6 On 29 May 2014 the respondent filed a bill of costs. 7 On 23 June 2014 an estimate of costs was made by the Registrar. Under r 40.20(3) of the Federal Court Rules the Registrar gave notice to the parties that the estimate made of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue was $24,300. The Registrar drew the attention of the parties to rr 40.20(4) and 40.21. The Registrar said that should a Notice of Objection not be filed pursuant to r 40.21(1) of the Federal Court Rules, the party that filed the bill of costs should prepare and lodge a draft certificate of taxation in accordance with Form 132. The suggested wording was: I hereby certify that pursuant to rule 40.20 of the Federal Court Rules 2011, the Respondent's costs, in accordance with the Order of the Court made on 24 April 2014, are deemed to be $24,300.00. 8 By notice filed on 14 July 2014 the fifth applicant objected to the estimate of costs made in the notice of estimate dated 23 June 2014. 9 On 15 July 2014, an email was sent to the parties by the Registrars' Assistant notifying the parties that the Registrar had directed, pursuant to r 40.21(2)(a) of the Federal Court Rules, that the matter proceed to a confidential conference with a view to reaching a mediated resolution of the bill or clarifying the issues in dispute. The email stated that if the matter was not resolved at the conference, a full taxation of the bill would proceed on a date to be advised. 10 On 16 July 2014, the solicitors for the respondent, by email to the Registrar copied to the solicitors and counsel for the applicants, said that no applicant, other than the fifth applicant, had objected to the estimate and continued: In those circumstances, the respondent requests the Court to issue the certificate of taxation as against each of the non-objecting applicants, the first to fourth applicants, on the basis that the respondent will not pursue the recovery of that order for costs against the fifth applicant. This renders the need for the taxation and conciliation of that bill of costs otiose. Upon the certificate of taxation being issued, the respondent would not object to the taxation fee of $2,000, if already paid by the fifth applicant, to be returned to the fifth applicant. 11 On 17 July 2014, by email to the Registrar and to the parties' lawyers, Mr Hamilton said the proposal was not permissible under the Federal Court Rules. "Objection is made to the issue of a Certificate as 'a party interested in the bill objects to the estimate', such objection being lodged on 14 July 2014 and therefore a certificate cannot be issued." The email made reference to r 40.20. 12 On 4 August 2014 the Registrar held a hearing on the respondent's request that a certificate of taxation be issued as against the first to fourth applicants only. The fifth applicant and the respondent provided written submissions. 13 The fifth applicant submitted that the respondent's "application" was invalid as not complying with r 17.01 of the Federal Court Rules and thus was not a proper "application" that could be considered by the Court. The respondent had not been granted leave to apply to the Court in relation to the taxation of the bill of costs. The respondent's failure to comply with r 17.01 denied the fifth applicant procedural fairness. The fifth applicant also submitted there was no power to issue a certificate of taxation against other parties once an objection had been lodged by "a" party interested in a bill. The fifth applicant submitted that it was a person against whom the 24 April 2014 order for costs had been made and thus it was a party interested in the bill of costs arising from that order. The fifth applicant submitted that only a single party was required to object to make r 40.20(4) inapplicable and trigger the r 40.21(2) process. The fifth applicant submitted that the 16 July 2014 email indication that the respondent did not intend to pursue the recovery of the order for costs against the fifth applicant was of no legal effect because, in part, the Court's costs order of 24 April 2014 against all the applicants could not be varied by any unilateral action of the respondent and the respondent's indication was made after the fifth applicant properly objected to the estimate under r 40.20(4) and the Court had recognised the fifth applicant's proper objection by making directions under r 40.21(2). 14 The respondent submitted that the taxing officer may make separate certificates of taxation under r 40.28(e). As between the respondent and the first to fourth applicants, the estimate had been accepted. The objection by one person could not force all others to a taxation they did not seek. The respondent had effectively said that upon the issue of certificates of taxation against the first to fourth applicants, he withdrew the bill of costs against the only objector, the fifth applicant. The respondent submitted there were good rational grounds for not pursuing the objector as a corporate foreign entity with no assets in the jurisdiction and no evidence of it having any assets overseas. The prospect of recovering costs of the taxation against it, if ordered, would also be doubtful, the respondent submitted. The respondent submitted that the fifth applicant's contention that it had the right to force the non-objecting parties to taxation and that all non-objecting parties were bound to taxation if any one of the parties against which an order was made objected, even if the bill was withdrawn as against that party, would possibly yield a most curious result. Where the certificate which issued after taxation exceeded the estimate, parties would become liable for payment of a higher amount, occasioned by the election of another unrelated party. Equally curious, the respondent submitted, would be the prejudice occasioned to the respondent as by the fifth applicant only forcing taxation, the non-objecting others responsible for the order would effectively be shielded from possible orders for the costs of the taxation that might be made under r 40.33. The respondent submitted it was appropriate for a certificate of taxation to issue for payment jointly and severally as against each of the non-objecting applicants for the amount of the estimate. 15 On 7 August 2014 the Registrar made the orders I set out below. 16 On 14 August 2014 the fourth applicant, Andrew Hamilton, in accordance with orders 1 and 2 of those orders, filed a notice stating that he "joins the fifth applicant in objecting to the estimate of costs made by Registrar Segal in the notice of estimate dated 23 June 2014. This objection is made only because of the effect of orders 3, 4 and 5" of the 7 August 2014 orders. 17 25 August 2014 was the final date on which the respondent was granted leave to discontinue the bill as against an applicant and no such discontinuance was filed. 18 The fifth applicant's application for review was filed on 27 August 2014. 19 No application has been made by the respondent to vacate the costs order made on 24 April 2014 as against the fifth applicant.

The orders made by the Registrar on 7 August 2014 20 The orders the subject of the application for review were as follows: 1. Under r 1.39 of the Federal Court Rules 2011 (FCR), the time for filing and serving a notice of objection to the notice of estimate of costs dated 23 June 2014 (estimate) in relation to the bill of costs filed by the Respondent on 29 May 2014 (bill) is extended to 14 August 2014. 2. Under rr 1.34 & 1.35 of the FCR, in respect of any notice of objection to the estimate filed by Mr APS Hamilton as solicitor for a party (other than the Fifth Applicant): (a) compliance with r 40.21(1)(b) is dispensed with; and (b) the security in the amount of $2,000, paid into the Litigants' Fund on 14 July 2014 on behalf of the Fifth Applicant in compliance with r 40.21(1)(b), also stand as payment by the party of security for the costs of any taxation of the bill. 3. Under rr 26.12 & 1.33 of the FCR, leave is granted to the Respondent up to and including 25 August 2014 to discontinue the bill as against an Applicant on condition that no further action is taken by the Respondent against that Applicant to recover the costs ordered to be paid by that Applicant under Order 10 made on 24 April 2014 (costs order). In the event that the bill is discontinued against an Applicant, as between the Respondent and that Applicant there be no order as to costs. 4. Under r 1.35 of the FCR, in the event that a notice of objection to the estimate is filed by an Applicant and the bill is discontinued against that Applicant in accordance with Order 3, the notice of objection is deemed to have been struck out on 25 August 2014. 5. Under r 1.35 of the FCR, in the event that after 25 August 2014 there is no extant notice of objection to the estimate and there is an Applicant against whom the bill has not been discontinued, leave is granted to the Respondent up to and including 1 September 2014 to apply to a registrar for the immediate issue of a certificate of taxation certifying that the Respondent's costs under the costs order are deemed to be $24,300. The following order is not the subject of the application for review but, it was common ground before me, needed to be varied. The substantive dispute in relation to order 6 was whether the parties should be directed to attend before a Registrar for a confidential conference to attempt to reach a resolution of the dispute. The respondent contended that that order would serve no purpose whereas the fifth applicant submitted that that order should be maintained. 6. Under r 40.21(2)(a) of the FCR, in the event that after 25 August 2014 there is an extant notice of objection to the estimate, the parties attend before Registrar Ng for a confidential conference to attempt to reach a resolution of the dispute. The conference will be listed at 10.15 am on Tuesday, 7 October 2014 at Law Courts Building, Queens Square, Sydney. Each party must prepare a document (no more than 4 pages in length) identifying the real issues in dispute and the parties' contentions. The document must be exchanged between the parties and also sent to the Registrar Ng at least 7 days prior to the date of the conference. The copy for Registrar Ng should be sent as an email attachment to the Registrar directly at chuan.ng@fedcourt.gov.au. 21 It was common ground before me that the fourth applicant had also filed an objection to the Registrar's estimate pursuant to order 1; that the respondent had not acted on the leave granted by the Registrar in order 3; and that the fifth applicant's objection remained on foot.

The statutory provisions 22 The relevant provisions of the Federal Court of Australia Act 1976 (Cth) are as follows: 35A Powers of Registrars (1) Subject to subsection (2), the following powers of the Court may, if the Court or a Judge so directs, be exercised by a Registrar: (a) …; (b) …; (c) …; (d) …; (e) …; (f) the power to make an order as to costs; (g) the power to make an order exempting a party to proceedings in the Court from compliance with a provision of the Rules of Court; (h) a power of the Court prescribed by Rules of Court. (2) A Registrar shall not exercise the powers referred to in paragraph (1)(f) except in relation to costs of or in connection with an application heard by a Registrar. (3) The provisions of this Act and the Rules of Court that relate to the exercise by the Court of a power that is, by virtue of subsection (1), exercisable by a Registrar apply in relation to an exercise of the power by a Registrar under this section as if references in those provisions to the Court were references to the Registrar. (4) Notwithstanding any other provision of this Act and any provision of the Public Service Act 1999 or of any other law, a Registrar is not subject to the direction or control of any person or body in relation to the manner in which he or she exercises powers pursuant to subsection (1). (5) A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power. (6) The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised. 23 Thus the application is under s 35A(5). 24 Section 37P of the Federal Court of Australia Act relevantly provides: 37P Power of the Court to give directions about practice and procedure in a civil proceeding (1) This section applies in relation to a civil proceeding before the Court. (2) The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding. (3) Without limiting the generality of subsection (2), a direction may: (a) require things to be done; or (b) set time limits for the doing of anything, or the completion of any part of the proceeding; or (c) limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence; or (d) provide for submissions to be made in writing; or (e) limit the length of submissions (whether written or oral); or (f) waive or vary any provision of the Rules of Court in their application to the proceeding; or (g) revoke or vary an earlier direction. By item 26 of Pt 3.3 of Sch 2 to the Federal Court Rules the power in s 37P(2) is a power of the Court that may be exercised by a Registrar. 25 The relevant provisions of the Federal Court Rules are as follows: 3.11 Application for review of the Registrar's exercise of power (1) A party may apply to the Court under section 35A(5) of the Act for review of the exercise of a power of the Court by a Registrar. (2) The application must be made within 21 days after the day on which the power was exercised. … Division 40.2 - Taxation of costs 40.12 Application of Division 40.2 and 40.3 If an order is made in favour of a party for payment of the party's costs, the costs must be taxed in accordance with this Part, unless the amount of costs is agreed between the parties to the order. 40.13 Taxation of costs awarded on an interlocutory application If an order for costs is made on an interlocutory application, the party in whose favour the order is made must not tax those costs until the proceeding in which the order is made is finished. Note: The Court may order that costs of an interlocutory application be taxed immediately. … 40.17 Filing bill for taxation A party who wants to have costs taxed must file a bill for taxation. Note: Bill is defined in the Dictionary. … 40.19 Service of a bill A party who files a bill must serve on each party interested in the bill, at least 7 days before the date endorsed on the bill: (a) a copy of the bill as endorsed by the Registrar; and (b) the documents mentioned in paragraph 40.18 (b). Note: Party interested in the bill is defined in the Dictionary. In the Dictionary, party interested in the bill means a party or a person in whose favour or against whom an order for costs has been made. 40.20 Estimate of costs (1) Before a bill is taxed, a taxing officer is to make an estimate of the approximate total for which, if the bill were taxed, the certificate of taxation would be likely to issue. (2) The estimate in subrule (1) is to be made in the absence of the parties and without making any determination on the individual items in the bill. (3) The taxing officer will give notice, in writing, to each party interested in the bill, of the estimate made under subrule (1) (the notice of estimate). (4) Unless a party interested in the bill objects to the estimate in accordance with rule 40.21, the amount of the estimate is the amount for which the certificate of taxation will be issued. Note: Certificate of taxation is defined in the Dictionary. See also rule 40.32. 40.21 Objection to estimate (1) A party interested in the bill who wants to object to the estimate must, within 21 days after the issue of the notice of estimate: (a) file a notice of objection, in accordance with Form 128; and (b) pay into the Litigants' Fund an amount of $2000 as security for the costs of any taxation of the bill. (2) On receipt of the notice of objection and the payment in paragraph (1)(b), the Registrar may direct: (a) the parties to attend before a designated Registrar for a confidential conference to: (i) identify the real issues in dispute; and (ii) reach a resolution of the dispute; or (b) a provisional taxation; or (c) that the taxation of the bill proceed. 40.22 Resolution at confidential conference If the parties achieve a resolution of the dispute at a confidential conference, the Registrar will: (a) issue a sealed certificate of taxation for the amount agreed by the parties; and (b) pay the monies paid into the Litigants' Fund in accordance with paragraph 40.21(1)(b) to: (i) a party, in accordance with any agreement between the parties; or (ii) if there is no agreement between the parties - to the party who objected to the estimate. Note: For payment out of the Litigants' Fund, see rule 2.43. … 40.33 Costs of taxation (1) A party who files an objection under rule 40.21 must pay the costs of taxation of all parties from the date on which the taxing officer notified the parties of the estimate unless: (a) if the party is the party who filed the bill - the costs are taxed at more than 115% of the taxing officer's estimate; or (b) in any other case - the costs are taxed at less than 85% of the taxing officer's estimate. (2) A party may apply to the taxing officer to be relieved of the consequences of subrule (1) if: (a) the party had offered to compromise the costs on terms more favourable than the costs were taxed; or (b) the conduct of any other party at the taxation added significantly to the duration or cost of the taxation.

The review 26 On the review, the fifth applicant submitted that the Registrar purported to exercise the powers under rr 1.33, 1.34, 1.35 and 1.39 in order to override the normal operation of the taxation of costs provisions of the Federal Court Rules. It submitted that the onus was on the respondent to demonstrate why his purported application should be granted. It submitted that the respondent's email request should not be treated as a valid interlocutory application and should be dismissed. Division 40.2 set out a process where a single party interested in a bill has a right to object to an estimate of costs and pursue taxation, irrespective of whether other parties interested in the bill also object. There was no mechanism, the fifth applicant submitted, for such an objection to be extinguished or the quantum of a bill to be established except via the procedure set out in Div 40.2. The fifth applicant submitted that the respondent's purported application should be dismissed, the orders of the Registrar set aside and the parties restored to the position they were in before the Registrar's orders were made. 27 The respondent submitted that the fifth applicant had nothing to gain from its review application. The respondent submitted that it was improbable that the objection of one should force taxation on all with the same interest in the bill, preventing the bill's withdrawal or discontinuance, with the bill proceeding to taxation against all the applicants. The respondent submitted that the correct construction of the Rules was that the Registrar should reject notices of objection unless made by all of those with the same interest in the bill acting jointly as one party - "a party interested in the bill". The respondent submitted that the rule expressed "a party interested in the bill" deliberately in the singular and gave "a definition of that phrase which would not be needed if it were intended to refer to a party in the proceeding, of numerous with an interest in the bill." When a costs order was made either in favour of, or against, a multiple number of individual parties to a proceeding, they must all join into an objection as "a party interested in the bill" or the estimate became the certificate, the respondent submitted. The respondent submitted the objections initially made by the fifth applicant and later joined by the fourth applicant were therefore invalid and of no effect and the Registrar should be directed to enter a certificate of taxation for the estimate as against each of the five applicants jointly and severally liable for the costs order as "a party interested in the bill". 28 The respondent also sought a lump sum order for the costs of the review on an indemnity basis or in the amount of $12,180 and submitted the order should be made against the fifth applicant and also the lawyer for the fifth applicant, Mr Hamilton, or in his capacity as fourth applicant. The respondent submitted the challenge made to the proposal for the respondent to withdraw the bill, and the application for review, were against the fifth applicant's interests.

Consideration 29 The overriding objective is the interests of justice: see r 1.32. In Mazukov v University of Tasmania [2004] FCAFC 159 at [11] the Full Court said in relation to the predecessor to r 40.20: It is not difficult to discern the purpose of O 62 r 46 as being to avoid the more expensive and protracted procedure of a full taxation; Fuller v Minister for Primary Industries & Energy [1998] FCA 377 ('Fuller'). The requirement for security for costs in subrule (d) is similarly apparent, being designed 'to strike a balance between the party liable to pay costs and the party who has obtained a favourable costs order'; Potier at [15]. It does so by providing 'a fund against which a party who has been unsuccessfully challenged in relation to an estimate ... might apply their costs of attending the resultant taxation of the bill'; Dudzinski at [26]. As French J remarked in Fuller, 'A party objecting to the estimate does so at his own risk as to the costs of the process of taxation which he invokes'. We would add that the protection of the rule is especially important where the financial resources of the party seeking to challenge the estimate are in doubt. (Citations omitted) 30 In my opinion the orders made by the Registrar were procedural and made for the purpose of facilitating either resolution of the dispute about the bill of costs or the taxation of that bill. 31 Further, the fifth applicant succeeded before the Registrar insofar as the Registrar refused the respondent's request to issue a certificate of taxation against the first, second, third and fourth applicants on the basis that the respondent would withdraw the bill against the fifth applicant upon the issue of that certificate. 32 In the events which have happened the fifth applicant remains an objector to the bill. By the time the fifth applicant filed its application for review, the issue was no longer whether the fifth applicant was entitled to participate in the objection to the estimate because the respondent had not taken advantage of the leave granted by order 3 by the time that leave had expired. 33 Thus, at the time the application for review of the Registrar's decision was filed and at the time of the hearing of that application it is very difficult to see how the fifth applicant's rights or interests were adversely affected by the orders sought to be reviewed. Considered at those times, the fifth applicant had suffered no prejudice. 34 Now that the fifth applicant remains entitled to participate in the taxation, the present proceedings do not seem to me to be apposite to raise the issue whether a person who is amongst a number of applicants or respondents against whom a joint and several costs order has been made may, by filing a notice of objection, prevent the operation of r 40.20(4) whereby a party in whose favour a costs order has been made may obtain a certificate of taxation in the amount of the estimate. 35 However, it seems to me that since the costs order in the present case is joint and several, each of the parties is interested in the bill as defined in the Dictionary in Sch 1 to the Federal Court Rules. 36 More generally, in my view, the better construction of the provisions of the Federal Court Rules is as follows. The starting point is r 40.12 which provides that, unless agreed between the parties to the costs order, the costs must be taxed in accordance with Pt 40. Next, rr 40.17 and 40.19, read together, mean that a party who files a bill for taxation, being a party who wants to have costs taxed, must serve on each party in whose favour or against whom an order for costs has been made, a copy of the bill (together with the receipts or accounts being the documents mentioned in paragraph 40.18(b)). As I have set out above, "party interested in the bill" is defined in the Dictionary. 37 Turning then to the estimate of costs, the taxing officer is to give notice in writing of the estimate to each party interested in the bill, which again must be each party in whose favour or against whom an order for costs has been made. 38 It is also important to consider r 40.20(4) and r 40.21 together. In my view these provisions have the result that a party, which in context means any party, in whose favour or against whom an order for costs has been made may object to the estimate. 39 I do not accept the construction advanced on behalf of the respondent that all parties who wish to take issue with the estimate must object. In my view any objection, whether made by a party in whose favour an order for costs has been made or a party against whom an order for costs has been made, displaces the estimate process, albeit the dispute may be resolved by agreement between the parties to the costs order (r 40.12) or by resolution in the context of a Registrar's directions under r 40.21(2). 40 Thereafter the process of provisional taxation under r 40.23 (as opposed to an estimate under r 40.20) may proceed, in relation to which a party interested in the bill may file a notice requesting a full taxation. It seems that a provisional taxation would only occur upon the making of a direction by the Registrar under r 40.21(2)(b). If the taxing officer gives a written notice stating the amount for which the bill is provisionally taxed and identifying the amounts provisionally taxed off the bill, a party interested in the bill may file a notice requesting a full taxation. A full taxation may also follow from a direction of the Registrar under r 40.21(2)(c). 41 I turn now to the orders made by the Registrar which the fifth applicant has applied to the Court to review. 42 As to Order 1 made by the Registrar on 7 August 2014, the fifth applicant is not affected by that order and there was no appearance by the fourth applicant to complain about it. The same conclusion applies to order 2. 43 As to orders 3, 4 and 5, the respondent did not take advantage of the leave to discontinue in order 3 and the bill has not been discontinued against the fifth applicant. Order 4 had no effect therefore as it was contingent on order 3. The same applies to order 5. Relevantly to the fifth applicant, the bill was not discontinued against it and therefore the respondent did not have leave to apply for the immediate issue of a certificate of taxation certifying that his costs under the costs order were deemed to be $24,300. 44 In relation to order 6 made by the Registrar, there does not seem to me to be any point, given the attitude of the parties before me, in making an order for a confidential conference. I shall, however, make directions so that the parties understand each other party's contentions in relation to the bill of costs. It remains open to the parties on each side of the record to apply to the Registrar for a confidential conference.

Conclusion 45 There remains to consider the costs of the hearing before the Registrar on 4 August 2014. In my view, because the fifth applicant succeeded, in part, before the Registrar there should be no order for costs of that hearing. 46 As to the costs of this review, in my opinion the fifth applicant has failed in its application for review and it should therefore pay the respondent's costs of the application. I do not consider that the circumstances support the respondent's application that a costs order should also be made against the lawyer for the fifth applicant, Mr Hamilton. I would not make an order against Mr Hamilton as the fourth applicant because the fourth applicant did not appear on the fifth applicant's application. 47 As to the respondent's application that the costs should be ordered on the indemnity basis, I have given this application careful consideration in light of what I have found to be the lack of utility of the application for review and in light of the terms of the email dated 10 September 2014 sent on behalf of the fifth applicant. That email answered an email dated 4 September 2014 from the solicitors for the respondent asking, amongst other things, if the Court made the orders which the fifth applicant contended for, how would the fifth applicant's position differ and what was the purpose of the application. The fifth applicant's reply was to the effect that it would make its legal arguments at the appropriate time and would not be complying with the "unreasonable and baseless demands" set out in the email. I do not regard this reply as an appropriate way in which to conduct litigation in this Court. Nevertheless I do not propose to order that the costs of the application be paid on an indemnity basis. I so exercise the Court's discretion by reason of the mixed success of the parties before me on the issues argued. 48 I turn next to the respondent's submission that there should be a fixed sum costs order in respect of the application to review the decision of the Registrar. I am concerned that the costs of the review are disproportionate to the amount in issue. I would be further concerned if added costs were expended on taxing the costs of the application to review the Registrar's exercise of power in respect of the relatively minor costs order presently in issue. In my opinion this is an appropriate case to act under r 40.02(b) of the Federal Court Rules and to order that the costs be awarded in a lump sum, instead of any taxed costs. 49 It remains then to consider the quantum. I have considered in this respect the affidavit of Yves Raphael Hazan affirmed 27 October 2014 which includes an estimate as at 24 October 2014 of those party and party costs which the respondent would be likely to recover on the review application. The time estimated on a taxed basis is 21 hours and the amount $12,180. In my opinion and notwithstanding that affidavit evidence, taking into account the approach in Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123, the appropriate amount of the lump sum is $5,800. In so concluding I have endeavoured to balance the interests of the fifth applicant as against the interests of the respondent: to prevent prejudice to the fifth applicant by overestimating the costs and preventing injustice to the respondent by adopting an arbitrary failsafe discount on the costs estimate. To that end, this sum represents, on the evidence, a substantial discount from the amount that would have been recovered by the respondent on any party/party taxation of his costs. 50 I should also record that on 28 October 2014, the day following the hearing and while judgment was reserved, the fourth applicant, without leave, sent an email to my associate seeking to put certain submissions. I refused the fourth applicant leave to make those submissions and said that I would not take those submissions into account. I took this course in light of the fact that the fourth applicant had been personally present in court as the solicitor for the fifth applicant and had stated more than once that the fourth applicant did not seek to appear on the fifth applicant's application. I also took into account that additional costs would be incurred and additional time spent if, while judgment was reserved, the fourth applicant had been permitted to make submissions. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.