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[2018] FCA 1133
Federal Court of Australia
2018-07-31
French J, Lee J
Original judgment source is linked above.
Counsel for the Applicant: Dr O Bigos
Solicitor for the Applicant: Phi Finney McDonald
Counsel for the Respondents in NSD580/2018: Mr A Shearer
Solicitor for the Respondents in NSD580/2018: Quinn Emanuel Urquhart & Sullivan
Counsel for the Respondent in NSD1112/2018: Mr C M Tam (25 June 2018)
Solicitor for the Respondent in NSD1112/2018: Squire Patton Boggs
BETWEEN: RAFFAELE WEBB Applicant
AND: GETSWIFT LIMITED (ACN 604 611 556) First Respondent
JOEL MACDONALD Second Respondent SQUIRE PATTON BOGGS (AU) Respondent to the Interlocutory Application JUDGE: LEE J DATE OF ORDER: 31 July 2018
BETWEEN: RAFFAELE WEBB Applicant
AND: SQUIRE PATTON BOGGS Respondent
A Introduction 1 On 20 June 2018 I made a number of orders which flowed from the judgment I delivered in Perera v GetSwift Limited [2018] FCA 732 (principal judgment). This included putting in place a cost reference, making a common fund order, and approving notices to group members pursuant to s 33Y(2) of the Federal Court of Australia Act 1976 (Cth) (Act). The approved notices informed group members of their right to opt out of this proceeding (Webb Proceeding) and also as to the terms of a common fund order. 2 Under the heading of "Common Fund Order" in the orders made on 20 June 2018, the following appears: 18. Subject to further order, and pursuant to ss 23 and 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act), upon Resolution (as defined in the Funding Terms) the applicant and group members pay from any Resolution Sum (as defined in the Funding Terms) the amounts referred to in paragraphs 5(a) and (b) of the Funding Terms, prior to any distribution to group members, in accordance with the Funding Terms. 19. Order 18 is subject to the provision of an undertaking by each of Therium Litigation Finance (Australia) Limited (Therium), the applicant, and Phi Finney McDonald to each other and to the Court in the terms set out in Annexure C to these Orders (being that they will comply with their obligations under the Funding Terms (being Annexure B to these Orders) and the terms of Order 18), such undertaking to be given within seven days of the making of Order 18. 3 Further, on 25 June 2018, in addition to making orders protecting the process of opt out (the reasons for which have been published as Webb v GetSwift Limited (No 2) [2018] FCA 994), I made the following orders relating to costs: 3. Squire Patton Boggs pay Mr Webb's costs of the Interlocutory Application on an indemnity basis, with such costs to be paid on a lump sum basis in an amount to be fixed. 4. Order 3 made on 20 June 2018 be vacated and in lieu thereof orders that the issue of costs in relation to the interlocutory application filed on 25 May 2018 and the amended interlocutory application dated 28 May 2018 and their quantification be reserved, save that any costs will be awarded on a lump sum basis. 5. By 2 July 2018, Mr Webb file and serve a draft order indicating the costs orders sought, together with any evidence relating to the quantification of costs and any written submissions. 6. By 9 July 2018, any party against whom a costs order is sought file and serve any evidence and submissions in reply. 7. Unless any party against whom a costs order is sought indicates in writing to the Associate to Justice Lee by 12 pm on 10 July 2018 that they wish to be heard further orally, the costs orders be determined in Chambers on the papers. 4 This judgment sets out my reasons for: (a) making the common fund order; (b) making order 3 on 25 June 2018 (that Squire Patton Boggs (SPB) pay Mr Webb's costs of the Interlocutory Application determined that day on an indemnity basis); and (c) now making orders following a review of the evidence and the additional submissions I have received in accordance with the orders of 25 June 2018.
B Common Fund Order 5 The reasons for making a common fund order in the Webb Proceeding have been, in large part, explained in the principal judgment: see [242]-[247]. Each applicant who commenced proceedings against GetSwift proposed a different form of common fund order and advocated that their proposed order be made in their proceeding. As I said at [244], each applicant to the competing class actions submitted that there was no difficulty in making a common fund order at this early stage of the matter's progression and GetSwift did not oppose such a course. 6 Following the stay of the Perera Proceeding, a submission was then made by Mr Perera and the McTaggart applicants, who had been given leave to intervene in the Webb Proceeding, that I should defer making any orders advancing the Webb Proceeding until after the determination of applications for leave to appeal against the principal judgment. Indeed, an application for a stay of my orders was made before Justice Yates (including, curiously, an order that costs be reserved). This application was refused by his Honour. 7 Be that as it may, it was suggested at a case management hearing following the refusal of the stay, that I should not proceed to approve notices, nor should I make a common fund order. In part, it was said that this would be premature in the light of the proposed appeals and it was further suggested that some form of preliminary notice ought to be sent to all group members about the terms of the common fund order prior to any such order being made. This latter contention had not been advanced when each applicant contended for their own version of a common fund order. 8 I refused to defer the approval of notices but had always intended to defer service of notices until after the determination of any appeals. I considered that it was consistent with the overarching purpose to take all steps that could presently be taken, to ensure that notices could be served promptly in the event that my orders were left unaffected by any subsequent orders of the Full Court. To do so would ensure that notification is given to group members as soon as practicable as to both the right to opt out and also as to the making of the common fund order. This would mean that after significant delay, attention could finally be directed, with celerity, to the substantive aspects of the case against GetSwift. 9 This course was also adopted because, as a matter of case management, I did not believe there to be a need for prior notification to be given to the group members as to the prospect of a common fund order being made. Full argument was conducted as to the pros and cons of the competing common fund orders. The common fund order made was the one which, for reasons I have already explained, was best adapted to further the interests of group members. Notwithstanding this, it is critical to remember that each group member will have a right to make an informed decision to opt out now that the terms of the common fund order have been settled. To have two notices sent out, one before the making of a common fund order, and then an opt out notice after the making of the order, would cause both delay and significant and unnecessary expense. It was for these reasons that I proceeded to make the order and approve the notices giving details of the order.
C Costs 10 It is convenient to deal with the reasons relating to costs in two parts. I will deal initially with the indemnity costs order I made against SPB on 25 June 2018 and then separately with the costs orders that I propose to make following the receipt of material after 25 June 2018.
C.1 Costs of the Restraint Applications 11 It is trite that the Court has the power pursuant to s 43 of the Act to award costs in all proceedings before the Court. This is subject to a qualification in the present circumstances of a Part IVA proceeding, where costs cannot be awarded against a person who is represented in those representative proceedings (see s 43(1A) and Perera v GetSwift Limited (No 2) [2018] FCA 909 at [24]-[27]). 12 It is often said that s 43 is a broad and ample power which is not to be read down and the Court has a very wide discretion to award costs: see Perera v GetSwift Limited (No 2) at [11]. 13 Where, such as here, it is proposed that costs be awarded against a non-party to proceedings (which is the position of SBP in relation to the Webb Proceeding) the discretion to order costs is to be "exercised judicially in accordance with the general legal principles pertaining to the law of costs": see Knight v F P Special Assets Limited (1992) 174 CLR 178 at 192 per Mason CJ and Deane J quoting Lambert JA in Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455 at 462. Sometimes the jurisdiction to order costs against a non-party has been described as "unusual": see Dowdell v Knispel Fruit Juices Pty Ltd [2003] FCA 1276 at [17]. Additionally, caution has been expressed in making awards of costs against solicitors: see Re Bendeich (No 2) (1994) 53 FCR 422 per Drummond J. 14 Apart from taking account of these admonitions as to caution, three additional and relevant points should be made as to the prospect of an order for costs being made against SPB. First, in the present case, relief was sought against the solicitors in their personal capacity as an unsuccessful respondent to an interlocutory application they resisted, rather than in their role simply as representatives of one of the contending parties (hence distinguishing the situation to the one that usually presents itself when considering costs orders against solicitors). Secondly, since the introduction of Part VB into the Act, all litigation in this Court is to be conducted in accordance with the overarching purpose of the civil practice and procedure provisions (which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible). All participants in the legal process are to have regard to the overarching purpose in conducting litigation, whatever their role. Thirdly, connected to the second point, in exercising a power conferred by s 43 of the Act to award costs (being a civil practice and procedure provision), there is a mandatory requirement that I exercise the power in a way that best promotes the overarching purpose: see s 37M(3). 15 SPB were unsuccessful in their opposition to the relief sought in the interlocutory application. As was explained by Gleeson CJ, Gummow, Hayne and Crennan JJ in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at 62-63 [25]-[26], although there is no absolute rule, one of the general propositions regarding an award of costs is that "the award is discretionary but generally that discretion is exercised in favour of the successful party": see also Oshlack v Richmond River Council (1998) 193 CLR 72 at 88-89 [40]-[41] per Gaudron and Gummow JJ. Mr Webb was successful and there is no reason, even though SPB is a non-party to the proceeding itself, that costs should not follow the result of the interlocutory application. 16 The next question becomes the basis upon which those costs should be paid. 17 The remarkable circumstances in which the application came to be heard have been described, in great detail, in Webb v GetSwift Limited (No 2). Mr Edwards was instructed by SPB when the interim restraint was ordered. The change of position by which SPB came to believe that they were not restrained by an undertaking, given in relevantly identical terms, remains difficult to fathom. As I have said, the giving of the undertaking, without a firm understanding of what was actually meant by the undertaking, should not have occurred. 18 The related conduct of SPB in belatedly raising the issues dealt with in Webb v GetSwift Limited (No 2), well after the interim restraint had been in place, and after not advancing submissions despite two opportunities being given by the Court to do so, was conduct which was inconsistent with the overarching purpose. Although there was apparently later befuddlement within SPB as to the effect of the undertaking (according to what was communicated to the Court by Mr Tam), no such confusion would have arisen if, when the matter came before the Court on three previous occasions, considered argument had been advanced. Conduct which causes loss of time to the Court and to others has long been identified as a basis upon which indemnity costs could be awarded: see, for example, Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, French J, 3 May 1991); Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233-234 per Sheppard J. This consideration has particular resonance when it is properly characterised, such as here, as conduct inconsistent with the overarching purpose. In the present circumstances it constitutes a sufficiently special basis to depart from the usual course (of awarding party/party costs) and the costs to be awarded against SPB should be paid on an indemnity basis. Such an order will serve to promote adherence to the overarching purpose: see s 37M(3). 19 There is no reason why these costs should not be paid on a lump sum basis. The principles informing the discretion to award lump sum costs have been usefully summarised by Markovic J in Fewin Pty Ltd v Burke (No 3) [2017] FCA 693 at [7]-[13]. To adopt the course of a lump sum order in appropriate cases is encouraged by the Costs Practice Note (GPN-COSTS) (Practice Note) where, at [3.3], the Practice Note explains that for costs issues requiring the involvement of the Court, the Court's preference is to avoid, where possible, "the making of costs orders that lead to potentially expensive and lengthy taxation of costs hearings" but rather, the Court will seek to adopt the "appropriate use of sophisticated costs orders and procedures, including lump-sum costs orders". This is such a case.
C.2.1 Summary of Proposed Orders and SPB's Two Submissions 20 In addition to the indemnity costs order made in this proceeding on 25 June 2018 which is payable on a lump sum basis (and which I have addressed above), Mr Webb also seeks an order for indemnity costs against SPB in what I have described in Webb v GetSwift Limited (No 2) as the new proceeding (NSD1112/2018) (New Proceeding). A further order is sought that any further costs payable be paid on a lump sum basis. It follows that there are two categories of costs, and associated disbursements, which are the subject of the application for a lump sum costs order, over and above the quantification of the costs I awarded in the Webb Proceeding on 25 June 2018 (being the costs of the interlocutory application filed 24 June 2018, including ancillary correspondence costs (Second Application Costs). These costs are: (a) In the Webb Proceeding: the costs of the interlocutory application filed on 25 May 2018 and the amended interlocutory application filed on 28 May 2018, including ancillary correspondence costs (First Application Costs); (b) In the New Proceeding: the costs of the proceeding in NSD1112/2018 (Further Proceeding Costs). 21 I will deal with each of these further applications below but before doing so, it is convenient to make some general observations about the two substantive submissions raised by SPB in opposition to the costs orders sought by Mr Webb. 22 The first point goes to the 'costs entitlement question' (to use the terminology of the Practice Note) and is that Mr Webb "should not gain a windfall". Put more neutrally, it is that resolving both the parameters of the restraint and its juridical foundations gave rise to complex issues and problems of "signal importance" and that Mr Webb's role was extremely limited and he "effectively rode on the coattails of the Court's own initiative" with his "role [being] merely facilitative, not substantive" (Lack of Substantive Assistance Submission). 23 The second point goes to the 'quantum of costs question' as to any lump sum costs orders made (to again use the terminology of the Practice Note). The point is that the affidavit of Mr Finney of 2 July 2018 (relied upon by Mr Webb to support the making of the orders sought and their quantum) fails to comply to with the Practice Note including, relevantly, by failing to exhibit primary documents providing sufficient proof of the costs sought (these deficiencies are summarised in an analysis conducted by Ms Banton at paragraph 12 of an affidavit sworn on 9 July 2018) (Lack of Proof Submission).
C.2.2 Lack of Substantive Assistance Submission 24 I have already said enough, both in this judgment and in Webb (No 2), to reject any notion that SPB behaved reasonably or consistently with the overarching purpose in presenting arguments to the Court in relation to the proposed restraint. Contrary to the submissions of SPB, at all times Mr Webb sought a pragmatic, sensible and cost effective resolution to an issue that the Court had flagged was of concern and had the potential to impact upon the integrity of the opt out process. The helpful and cost effective way that this matter was dealt with by both the funder and the solicitors in the McTaggart Proceeding, illustrates how this issue could have been constructively approached and resolved. 25 SPB were, of course, entitled to resist the notion that they be restrained. It just happens that this resistance was done in a manner which was both confused and confusing, wasted time and led to everyone else in the litigation labouring under a misapprehension as to whether SPB considered itself restrained by the undertaking. There is substance in SPB's contention that novel issues were at least potentially involved. The idea of restraining a solicitor from having unfettered communications with a client of the solicitor for any period (even when that solicitor is not the subject of a retainer, independent of a commercial enterprise being conducted with a funder) raises interesting questions. The point is that these interesting questions should have been dealt with at the time that argument occurred in relation to the interim restraint, or on the two subsequent occasions when the Court invited assistance and participation from SPB. 26 I further reject the notion that Mr Webb cannot be described as a conventional moving party or that he acted in a way open to any legitimate criticism. After delivery of the principal judgment, Mr Webb moved swiftly consistent with his obligations as a representative applicant. At all times during the process, Mr Webb made the point that he wished to ensure that accurate, complete and non-conflicted information was conveyed to group members. An application for restraint was only pressed to a conclusion when a consensual regime could not be put in place. This was consistent with the view I had expressed, on several occasions, that I would only make an order restraining SPB as a "last resort" and because I perceived there was no other way of protecting the integrity of the opt out process. In any event, I was assisted by Mr Webb's submissions (although I accept more detailed submissions could have been provided by Mr Webb as to questions of power). As I have explained, Mr Webb was focused primarily on seeking a regime whereby the interim restraint was continued by the provision of an undertaking. I do not consider that making an award for costs in favour of Mr Webb operates as any type of "windfall".
C.2.3 Lack of Proof Submission 27 As noted above, Ms Banton deposes in her affidavit that Mr Finney's affidavit failed to comply with the Practice Note. There was also evidence that SPB made requests that additional detail be provided (albeit after SPB had apparently had Mr Finney's affidavit and submissions on lump sum costs for a period of seven days). The point made by SPB is that the assessment requires some tangible evidentiary foundation and that those instructing Mr Webb appear unwilling to provide the material. It is said that an inference is available in those circumstances that the material would not be consistent with the claims made in Mr Finney's affidavit. 28 When addressing the material to be filed in support of a lump sum order, the Practice Note provides: 4.10 Unless the Court otherwise directs, no formal application for a lump-sum costs order is required. However, in cases where a lump-sum costs procedure is to take place, the Costs Applicant should file an affidavit in support of the lump-sum claim ("Costs Summary") in accordance with the timetable set by the judge. The Costs Summary 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. 4.11 The Costs Summary must be clear, concise and direct and not resemble a bill of costs in taxable form, nor should it contain submissions on the law. The intention of the lump-sum costs procedure is to streamline and expedite the determination or resolution of the quantum of costs question and not to replicate the taxation process. 29 SPB and Ms Banton have a point when they note that the material provided in Mr Finney's affidavit falls short of strict compliance with Annexure A to the Practice Note is some respects. Having said this, the affidavit is substantially compliant. Moreover, Mr Finney does affirm that the amounts claimed are capable of further verification through source material should such material be required to be filed. Mr Finney is an experienced practitioner. I do not believe that I should approach the figures claimed with some degree of caution or draw adverse inferences. 30 I am fortified in this approach by three matters. First, SPB did not ask for an oral hearing and Mr Finney's evidence was not challenged. Secondly, for those experienced in the conduct of class action litigation, it is fairly obvious to imagine the nature and quantum of the costs which would likely have been incurred for the sort of work which is the subject of the costs order. 31 Thirdly, eschewing a granular or fine approach to the evidence is consistent with how the process of quantification should be approached. Kenny J observed in Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288 at 292 [18], that the starting point for the fixing of costs is the charges rendered. Moreover, as Foster J noted in Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2014] FCA 346 at [17(e)], the Court is entitled to take a broad brush approach. Finally, as the Full Court (Logan, Kerr and Farrell JJ) recently explained in Coshott v Burke (No 2) [2018] FCAFC 81 at [27]: To require a judge to assess the reasonableness or otherwise of a lump sum by going through each claimed cost would be to require a judge to undertake a costs assessment. That would defeat the entire purpose of the lump sum costs procedure as set out in the Costs Practice Note. 32 Accordingly I propose to take an appropriately broad brush approach and I now turn to the additional costs orders that Mr Webb seeks.
C.2.4 First Application Costs & Further Proceeding Costs 33 It will be recalled that at an earlier time, Mr Perera had actually sought that Mr Webb pay his costs of the restraint application. This somewhat ambitious (some might say heroic) application was dealt with in Perera v GetSwift Limited (No 2) at [40]-[46] where I said as follows: The circumstances surrounding the injunction have been explained in my earlier judgment in the Webb Proceeding: Webb v GetSwift Limited [2018] FCA 783. The order that Mr Webb pressed by interlocutory application filed in Court on 25 May 2018 was as follows: Pursuant to s 33ZF of the [Act], the legal representatives and the litigation funder (and related entities of the applicant in [the Perera Proceeding]) be restrained from communicating with group members in [the Webb Proceeding] concerning any opt-out of that proceeding until such further order of the Court. The complaint of Mr Perera is that this form of order "purported to prevent Mr Perera from communicating with his solicitors Squire Patton Boggs about opt out". It was said that this would "stymie" Mr Perera's ability to give instructions as to whether to seek leave to appeal from the principal judgment. This was apparently because opt out was mentioned in numerous places in the principal judgment and the proposed restraint contained no limitation to communications which were only in relation to the question of whether a group member should opt out of the Webb Proceeding. Although there was some substance in the complaint as to the generality and form of the order sought (which was rectified in the form of order actually made), the core contention is that if Mr Webb put forward an appropriately framed request, rather than persisting in a broad restraint which had already been the subject of criticism from the Court, there would have been no need for an interlocutory hearing on 28 May 2018. Although I unqualifiedly accept the implicit submission of Mr Edwards, as highly experienced and competent counsel, that in such a counterfactual his advice to Mr Perera would have been to consent to such an order, it is a little difficult to reconcile the notion that consent would have been readily forthcoming, given the actions that were taken after the principal judgment was delivered. Notwithstanding that I declined to deal with the first application for restraint in order to allow for instructions to be obtained from both sets of solicitors and funders, no sensible temporary arrangement was put in place by Squire Patton Boggs (SPB) and ILP18 (such as the arrangement that was agreed in a timely and cooperative way between Mr Webb, the McTaggart applicants, Corrs Chambers Westgarth and Vannin). Indeed, assuming that Mr Perera, SPB and ILP18 would have consented to a more narrowly framed temporary restraint (as they now have done), then it seems to me that this should have been communicated to the solicitors for Mr Webb. What is evident, is that notwithstanding I indicated that a restraint order was very much a last resort, the position taken by at least Mr Perera and SPB was apparently inconsistent with agreeing to an immediate interim regime being put in place for a very short period so as to allow the argument concerning restraint to be argued fully (and hence avoiding the risk that the proposed restraint on non-Court approved communications would be rendered nugatory). As communicated by Mr Fraser of SPB on 25 and 28 May 2018, the procedural point was taken that neither SPB nor ILP18 were represented at the hearing on 23 May 2018, and that SPB considered that Mr Webb "should be required to file an application in relation to the proposed order so that both [SPB] and the litigation funder can be represented and be heard on the application before the order is made by the Court". After my Associate communicated an urgent listing, the further point was taken by Mr Fraser that "[SPB] do not understand that any application can proceed…in the absence of those documents being served on those entities", that is, SPB and ILP18: see Webb at [12]-[14]. This was consistent with Ms Banton of SPB noting at 10:18 am on 28 May 2018 to PFM, that if Mr Webb "wishes to restrain our firm and our client's (sic) funder the application would need to be properly constituted and served on the parties you are seeking injunctive relief against". To any recipient of this email, it would have been clear that no compromise would be proposed until at least SPB had been served and the funder had been served and apparently obtained independent legal advice. In any event, in these circumstances, the re-listing of the matter to deal with the issue of restraint in open court was caused by the necessity to preserve the status quo and to allow for an application to be made on an ex parte basis against ILP18 and on an inter partes basis against Mr Perera and his servants and agents. Although there might be good reasons as to why SPB could not have appeared, or why instructions could not have been obtained from ILP18 earlier, or for SPB's and ILP18's inability to instruct a representative to appear on their respective behalves at the interlocutory hearing, they are not self-evident and no material has been put before the Court to this effect. One would have thought that, consistently with the overarching purpose, it should have been possible for all these matters to have been sorted out (as was done speedily and with minimal fuss in relation to the McTaggart applicants and their funder and solicitors). Prima facie, it is difficult to understand why a sensible regime could not have been put in place until full argument could occur in relation to whether or not the restraint should continue during the entirety of the opt out process. In all the circumstances, it seems to me to be an appropriate exercise of discretion to reserve the costs of the interlocutory application for temporary restraint until the conclusion of full argument. At that time, I will make a determination as to who should pay the costs of the application for restraint on both an interim and final basis. I should note, subject to hearing any submissions, my preliminary view is that if argument is unnecessary and acceptable undertakings are eventually provided lasting until the end of the opt out process, then any relevant costs should be the costs of Mr Webb in the Webb Proceeding. 34 As was clear from the above, when the matter came before the Court on the day that the above judgment was delivered, it was thought by all appearing that undertakings had resolved the issue of the restraint against SPB and accordingly it seemed to me that no order as to costs should be made. 35 Such an order is no longer appropriate. It was necessary for Mr Webb to take steps to put in place an interim regime and, following belated but detailed argument, SPB was unsuccessful. I see no reason in principle for distinguishing the costs of the First Application from those that I have ordered be paid in relation to the Second Application and they will form part of the lump sum costs assessment that I propose to make on an indemnity basis. 36 Similarly, as to the Further Proceeding Costs, this application was unnecessary but for an arid procedural point taken by SPB. Although the Court ultimately made orders restraining SPB on the basis of the interlocutory application, the costs associated with the originating application were incurred at the instigation of Mr Perera. Given the relief sought by the originating application was the same as that sought by the interlocutory application, there ought to be no distinction between the costs of the interlocutory application and the originating application in the New Proceeding (hence the costs of this wasteful exercise ought be awarded to Mr Webb on an indemnity basis).
C.2.5 Quantification of Costs 37 Under this heading I propose to deal with the lump sum quantification of all the costs orders which I have ordered be paid on an indemnity basis by SPB. I have already explained (at [29]-[32] above) the principles informing the quantification process and my approach to the evidence. 38 The relevant evidence given by Mr Finney is at paragraphs [28]-[34] of his affidavit. He deposes to the fact that Mr Webb claims $38,271 on a lump sum costs basis and confirms that Mr Webb is not claiming more than he is liable to pay for costs and disbursements and that this is a fair and accurate summary of the amount that Mr Webb is entitled to claim. 39 Evidence was also given that Mr Webb is not entitled to claim input tax credits in respect of any GST relevant to the claims, and, as noted above, the amounts are capable of further verification through source material should such material be required by the Court to be produced. The proposed lump sum costs order is calculated on the following basis: Category Liable to Pay Amount Estimate of % Proportion to Total Person, Rate, Hours Solicitors' Fees SPB $23,947.37 62% Tim Finney, $670 P/h, 37.2hrs Odette McDonald, $670 P/h, 1.7hrs Ben Phi, $670 P/h, 1.4hrs Blake O'Connor, $390 P/h, 29.4hrs Muhammad Arayne, $290 P/h, 4.1 hrs Disbursements SPB $10,771 28.14% Oren Bigos Travel & Incidentals including Filing Fees SPB $3,553.82 9.2% N/A
40 In order to arrive at this figure, Mr Finney deposes to the fact that he applied several discounts on an issue by issue basis so that the categories appropriately reflected the time (and associated disbursements) spent on the performance of the relevant work. I accept Mr Finney's evidence and the discounts seem, in my view, to be both logical and appropriate. Additionally, the time spent and overall amount claimed are proportionate. The charge out rates are prevailing market rates for this type of litigation and are not excessive. The starting point is the amounts charged and, following discounts as explained by Mr Finney, on a broad brush approach, the costs claimed are reasonable. I propose to allow the costs in the amount claimed.
D Conclusion & Orders 41 In the circumstances I propose to make an order that SPB is to pay Mr Webb's costs in an amount fixed in a lump sum of $38,271. I also will make an order, in the New Proceeding, making it plain that the costs and disbursements that I have ordered in the Webb Proceeding subsume the costs that would otherwise be payable in the New Proceeding. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.
Webb
GetSwift Limited
(2012) 290 ALR 288
(1993) 46 FCR 225
(2007) 234 CLR 52
(1992) 174 CLR 178
(1998) 193 CLR 72
(1994) 53 FCR 422