FEDERAL COURT OF AUSTRALIA

Kimber v The Owners Strata Plan No. 48216 (No 2) [2018] FCAFC 58

ORDERS

THE COURT ORDERS THAT:

1.    The respondent must indemnify the appellant for any filing fees incurred by her in commencing and prosecuting the application for leave to appeal and the appeal.

2.    There be no other order as to costs.

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

REASONS FOR JUDGMENT

THE COURT

1    On 22 December 2017, the Court allowed Ms Kimber’s appeal against orders made by the primary judge on 8 September 2016 summarily dismissing, with costs, Ms Kimber’s application for review of a registrar’s decision not to set aside a bankruptcy notice served on her by the respondent. We remitted the matter back to the original jurisdiction of the Court: see Kimber v The Owners Strata Plan No. 48216 [2017] FCAFC 226.

2    On the issue of costs, the Court made the following orders:

5.    Costs are reserved and will be determined on the papers.

6.    The appellant must, on or before 31 January 2018, file and serve:

a.    An affidavit supporting any amounts she claims in relation to her out of pocket expenses, such as any filing fees, photocopying fees (less those related to Part D) and travel expenses in relation to the leave application and this appeal; and

b.    Any submissions (not exceeding 3 pages) which she wishes to make in relation to the appropriate order as to costs.

7.    On or before 21 February 2018, the respondent may file and serve any submissions it wishes to make (not exceeding 3 pages) in relation to the appropriate order as to costs.

8.    On or before 28 February 2018, the appellant may file and serve any submissions in reply (not exceeding 2 pages).

3    Neither the appellant nor the respondent took the opportunity within the time allowed to file an affidavit or make submissions. Notwithstanding that fact, the Court remains obliged to discharge its responsibility to determine the question of costs.

4    Having succeeded on the appeal, the appellant is entitled to her costs of the application for leave to appeal and the appeal but as an unrepresented litigant her entitlement is limited to disbursements proven to have been actually incurred. However, Ms Kimber has not complied with our order that on or before 31 January 2018 she provide an affidavit to establish the quantum (if any) of those costs. We are satisfied that it would not be in the interests of justice to prolong this appeal any further so that no further time will be allowed to the parties to provide evidence and submissions.

5    We are satisfied that Ms Kimber is entitled to be indemnified for filing fees, if any, she incurred in commencing and prosecuting this appeal (including the application for leave to appeal). As Ms Kimber provided no proof of any other disbursements within the time we allowed for her to do so, we will make no other order for costs.

6    For completeness, there are three things we wish to record.

7    First, as noted above, the Court delivered judgment allowing the appeal on 22 December 2017 which was also the last sitting day of term. By an email sent on that day after the Court’s registry had closed, Ms Kimber sought an extension of time within which to make submissions and provide evidence. She then went on holiday, as foreshadowed in the email.

8    On 8 January 2018, the Duty Registrar sent an email to the parties which, among other things, sought the view of the respondent as to an extension. That same day, the respondent, by its solicitors, advised the Duty Registrar that it opposed the granting of any extension on the basis that the time allowed was ample, having regard to the nature of the tasks entailed in the orders.

9    On 15 January 2018, Ms Kimber wrote to the Duty Registrar advising that she had arrived back from her holiday to find the 8 January correspondence. Noting that she had advised everyone about her extension request and holidays on 22 December 2017, she went on to state (as written):

PUTTING PRIORITIES IN ORDER

The Appeal costs submission is impossible before 31 January 2018 waiting for a possible response from the respondents to the invitation of 1 January 2018 due by 24 January 2018.

It is not my priority after 18 months to focus on costs and expenses awarded while wasting more time focussing on an unnecessary Appeal process that was more than financially costly.

10    On 16 January 2018, the registry sent to Ms Kimber an email in which, materially, it was stated:

[In] relation to the appeal, if you wish for Orders to be changed, and the other side do not consent to your proposed changes, you may file an Interlocutory Application with an Affidavit in support.

11    No such application was ever filed.

12    Second, on the morning of 11 April 2018, the parties were advised that this judgment would be handed down on 13 April 2018. In the afternoon of 11 April 2018, the solicitors for the respondent filed submissions on the issue of the appropriate orders as to costs. This should not have occurred as no leave had been granted for the respondent to file submissions at that time and we have ignored those submissions. We endorse the conclusion reached by Allsop P (as the Chief Justice of this Court then was), Giles JA and Tobias AJA in Bale v Mills (2011) 81 NSWLR 498; NSWCA 226 at [61] that after judgment is reserved, sending submissions to the Court without leave is wrong, and the Court may (and generally will) ignore what has been sent.

13    Third, as Ms Kimber was successful on the appeal and the primary judge’s orders made on 8 September 2016 were set aside, none of the respondent’s costs of conducting the summary dismissal application, the application for leave to appeal and the appeal should be charged against Ms Kimber’s Lot 110 in the strata plan.

Associate

Dated:    13 April 2018