FEDERAL COURT OF AUSTRALIA

Shahid v The Australasian College of Dermatologists [2006] FCA 414

COSTS – application by respondent for costs of interlocutory applications to be payable forthwith – applicant’s filing amended statement of claim significantly changing nature of application – costs on interlocutory matters awarded with liberty to apply – lapse of application lodged over two years previously – proceeding to be heard shortly – possibility of further delay in time when costs payable due to preparation of reasons and possibility of appeals – circumstances justified departure from ordinary rule that costs paid after completion of proceeding

McKellar v Container Terminal Management Services Ltd [1999] FCA 1639

Sereika v Cardinal Financial Securities Ltd (formerly Inteq Custodians Ltd) [2001] FCA 687

Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545

Harris v Cigna Insurance Australia Ltd (1995) ATPR 41-445

KIRAN RUBINA SHAHID v THE AUSTRALASIAN COLLEGE OF DERMATOLOGISTS

WAD 53 of 2004

NICHOLSON J

13 APRIL 2006

PERTH

THE COURT ORDERS THAT:

1.                  The respondent’s notice of motion dated 1 March 2006 be granted. 

2.                  The respondent’s costs thrown away by the respondent’s notice of motion dated 20 August 2004 be taxed and payable forthwith.

3.                  The respondent’s costs thrown away by the applicant’s notice of motion dated 14 June 2004 be taxed and payable forthwith.

4.                  The applicant pay the costs of the motion to be taxed and payable forthwith.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The respondent brings a notice of motion seeking taxation of costs of interlocutory proceedings. 

2                     On 28 April 2005, orders were made that the respondent’s notice of motion filed on 20 August 2004 and the applicant’s notice of motion filed on 14 June 2004 be dismissed by consent.  In each case it was further ordered that the respondent’s costs thrown away by the notice of motion be paid by the applicant to be taxed with liberty to apply in relation to the time of taxation in the event the proceeding is not resolved within six months.  That period expired on 28 October 2005.  The motion is brought in reliance on the liberty thus granted. 

3                     The hearing of this proceeding is listed for the week of 1 May 2006.  The consequence is that the notice of motion comes before the Court, as it were, on the eve of the trial.  The applicant says that it is brought to ‘punish’ the applicant as a person of limited resources.  However, the notice of motion was filed on 1 March 2006 and has only now been brought on. 

4                     The evidence of the solicitor whose affidavit supports the notice of motion on behalf of the respondent is that, notwithstanding that the taxation process may overlap the trial dates, it is her belief that the process will be completed well before judgment is handed down, as there is normally a gap between trial and the handing down of judgment and of course there is the possibility of appeal against any judgment in any event. 

5                     The respondent relies on the reasoning in McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 and Sereika v Cardinal Financial Securities Ltd (formerly Inteq Custodians Ltd) [2001] FCA 687.  

6                     In McKellar, Weinberg J followed the approach taken by Branson J in Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 and Kiefel J in Harris v Cigna Insurance Australia Ltd (1995) ATPR 41-445.  In Harris, Kiefel J accepted that an order that certain costs be taxed and paid forthwith was justified in circumstances where there had been a long delay in the course of the proceeding by the pursuit of an ill-considered and unnecessary claim.  It is common ground that the making of the order sought by the notice of motion is a matter in the discretion of the Court. 

7                     The applicant’s notice of motion of 14 June 2004 moved for an injunction restraining the respondent from having any communication with the Appeals Committee of the respondent in relation to the applicant’s appeal unless the applicant was informed in advance.  Further it sought for the respondent to supply copies of all material relating to the short listing of the applicant in the years 2000 – 2001.  Further, that the respondent supply copies of all files and documents relating to the application in 2002. 

8                     The respondent’s notice of motion of 20 August 2004 sought to dismiss the proceeding as it was then constituted and contained a notice of objection to jurisdiction. 

9                     As a consequence of the filing of an amended statement of claim each of these notices of motions became redundant.  That is, the nature of the action was fundamentally changed.  No longer was the Court sought to intervene in ongoing proceedings before the Appeals Committee.  The amended statement of claim brought a Trade Practices Act 1974 (Cth) series of claims based on past behaviour. 

10                  Consequently, the effect of the filing of the amended statement of claim was to see the action commenced afresh.  That was after the application had been on foot since 9 March 2004.  In other words, when the orders of 28 April 2005 were made, the original application had been on foot for over 12 months. 

11                  Although the proceeding is due to be heard in the first week of May, time will be required for preparation and publication of reasons.  Additionally, time may be taken by any appeals.  In my view, in those circumstances, this motion raises issues which fall within the principles identified in the cases referred to in McKellar.  That is, I consider that there are circumstances in the time which has elapsed and the significant nature of the change to the pleadings which warrants a departure from the ordinary rule that costs are to be paid after the completion of proceedings. 

12                  Accordingly, I consider that the discretion should be exercised in favour of the grant of the notice of motion.

Associate:

Dated:              13 April 2006