FEDERAL COURT OF AUSTRALIA

Chen v Monash University (No 2) [2016] FCAFC 93

ORDERS

THE COURT ORDERS THAT:

1.    Costs in this proceeding be paid by way of a lump sum fixed in the amount $73,770.

2.    The sum of $25,000 paid into Court by the applicant as security for costs pursuant to the order of Barker J dated 21 January 2016, be paid to the first respondent in partial satisfaction of those lump sum costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    In Chen v Monash University [2016] FCAFC 66, the Court dismissed the amended interlocutory application of the applicant to reinstate her appeal from the orders and judgment of the primary judge in proceedings VID 857 of 2013. The Court made orders to the effect that the applicant’s application be dismissed with costs and the respondents be at liberty to apply for a lump sum costs order within 14 days as well as for orders in respect of the monies earlier paid in by way of security. The amount paid in by way of security was $25,000 pursuant to an order of Barker J made 21 January 2016

2    The respondents duly sought orders to this effect within the time period specified and now seek orders that:

(1)    the costs be paid by way of a lump sum fixed in the amount of $73,770; and

(2)    the amount of $25,000 paid into Court by the applicant as security for costs pursuant to the order dated 21 January 2016, be paid to the first respondent in partial satisfaction of the costs.

3    The applicant opposes the order sought and in turn seeks the following order:

The Applicant be refunded $25,000 and the Respondents pay the Applicant costs representing legal costs incurred to her and the stress, humiliation, emotional and psychological damage to her.

4    It should be said at the outset that much of the content of the submissions of the applicant in opposing the orders that the respondents seek, and in support of the order that the applicant seeks, takes issue with the findings and reasons of this Court in dismissing the reinstatement application. For that reason, they are not properly directed to the costs issues now in question.

5    As to a submission by the applicant that “[t]here is no jurisdiction to grant security for costs in a reinstatement proceeding”, this was not advanced when the security order was made, and plainly is wrong.

6    The applicant’s related submission that the order requiring security of $25,000 was not for costs in the reinstatement proceeding but in the appeal proceeding if reinstatement was granted, is also simply wrong.

7    The further claim of the applicant to the effect that she has incurred legal costs and disbursements in the sum of $130,622, as well as suffered damage as a result of the termination of her employment in the sum of $280,000, not to mention stress, humiliation, emotional and psychological damage, are not matters that this Court will take into account, given the orders it has made dismissing the applicant’s primary claim of reinstatement and awarding the costs of the proceeding in favour of the respondents.

8    Similarly, the submission that costs do not always follow the event, which is made by the applicant in her submissions, is not properly directed to the issue now under consideration, this Court having already found that this is a case where costs are properly payable by the applicant to the respondents following the dismissal of her reinstatement application.

9    A claim to costs of litigation in employment law, as they are described by the applicant in her submissions, is also not appropriate for consideration in relation to the question of costs payable to the respondents that is now under consideration.

10    Additionally, submissions made by the applicant concerning “incorrect findings” in the reasons of the Court dismissing her reinstatement application are not presently relevant. The applicant is entitled, as any litigant, to avail herself of whatever appellate procedures may be available to her in respect of this Court’s judgment and orders. This costs consideration is not an appropriate occasion for the applicant to raise such concerns.

11    It follows that the further submission made by the applicant, that the decision of the primary judge and the decision of this Court in particular respects have “both unfairly denied the federal court’s jurisdiction of dealing with the victimisation claims”, is not relevant or appropriate to the costs matter now under consideration.

12    There is no doubt about the power of this Court to make the award of lump sum costs or, in this case, to make an order for lump sum costs in favour of the respondents. Rule 40.02(b) of the Federal Court Rules 2011 (Cth) expressly provides for such an order.

13    Various courts have addressed the circumstances in which a court might consider that the circumstances of the case warrant a lump sum order. For example, it has been said that the purpose of doing so is to save the parties the time, trouble, delay, expense and aggravation in having a taxation proceed in a matter. See Beach Petroleum NL and Another v Johnson and Others (No 2) (1995) 57 FCR 119 at 120; Keen v Telstra Corporation Limited (No 2) [2006] FCA 930 at [5].

14    In a human rights proceeding, lump sum costs were awarded by Mansfield J who considered there was “no particular characteristic of a case which must exist before a gross sum costs order can be made”. See Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916 at [23].

15    Indeed, in this proceeding the primary judge awarded lump sum costs (on an indemnity basis) against the applicant in favour of the respondents. See Chen v Monash University (No 2) [2015] FCA 552.

16    In other cases, the Court has spoken of the power to award lump sum costs so as to avoid an ongoing, counter-productive dispute as to costs, in the interests of achieving finality and subject always to the need to ensure that unreasonable amounts of costs are not pursued and awarded. See Anastasia Ualesi and Peti J Ualesi t/as Australian Empire Imports v Expeditors International Pty Ltd [2006] FCA 26 at [14].

17    When the primary judge, at the earlier stage of this proceeding, awarded lump sum costs in favour of the respondents, he acknowledged the long, drawn out and difficult exercise that would be faced if there were to be a taxation of costs in the matter. In the view of this Court, the same observation should be made at this stage, following the dismissal of the reinstatement application.

18    As the respondents reasonably submit, it is also relevant that the current matter has been on foot for over three years in this Court, following a process both internally and through the Australian Human Rights Commission that took a further 18 months.

19    In addition to this proceeding, since 2013, the applicant has initiated multiple proceedings against or in relation to the respondents and has thereby demonstrated a litigious and adversarial approach to the conduct of those proceedings. The applicant has made well over 100 applications in that time. The Court accepts, in these circumstances, that rather than try and proceed with a taxation of costs, it is appropriate to assess lump sum costs in order to avoid an ongoing and counter-productive dispute between the parties as to costs. By doing so, the objectives of efficiency and cost saving, reflected in s 37M of the Federal Court of Australia Act 1976 (Cth), will be achieved.

20    The respondents rely upon the affidavit of Ms Patrizia Mercuri, dated 26 May 2016, in support of the lump sum order that they seek. Ms Mercuri is a partner at Lander and Rogers, the lawyers for the respondents. She has made an estimate of lump sum costs. She has identified that the respondents have incurred legal costs of $63,166 and disbursements of $59,780.75 (both exclusive of GST) or a total of $122,946.75 (exclusive of GST). She has stated that in her professional opinion all of the costs have been reasonable and necessary.

21    She estimates that if the legal costs and disbursements were subject to taxation, the respondents would be entitled to payment of approximately 60% of the costs and disbursements, being a total (rounded off) of $73,770.

22    Ms Mercuri also notes that the applicant has not paid nor made any attempt to pay to the respondents the outstanding costs orders against her, being in the amount of $900,000, which arises by virtue of the orders of the primary judge earlier made, and the amount of $2,260 in a Fair Work Commission proceeding from 30 April 2015. Despite requests there has not been payment.

23    This Court accepts that the estimates made by Ms Mercuri are both reliable and reasonable and that the amount of $73,770 is a genuine and conservative estimate of the taxed costs that would be awarded to the respondents on any taxation. There is, in all the circumstances mentioned above, no need for a further contested proceeding over costs.

24    The Court also accepts the concern expressed on behalf of the respondents that, given the non-payment by the applicant of costs to date, there is a serious risk that the applicant is unlikely to pay the amount of costs ordered following taxation, or on a lump sum basis. To force the respondents to taxation and thereby to incur additional time and expense in the process, would be unreasonable.

25    In these circumstances, the Court considers that the orders sought by the respondents are appropriate.

26    The Court orders:

(1)    Costs in this proceeding be paid by way of a lump sum fixed in the amount $73,770.

(2)    The sum of $25,000 paid into Court by the applicant as security for costs pursuant to the order of Barker J dated 21 January 2016, be paid to the first respondent in partial satisfaction of those lump sum costs.

Associate:

Dated:    28 June 2016