FEDERAL COURT OF AUSTRALIA

Keen v Telstra Corporation Limited (No 2) [2006] FCA 930

COSTS – gross sum specified in order – approach to quantification of gross sum – Federal Court Rules O 62 r 4(2)(c)

Federal Court Rules O 62 r 4(2)(c)

Beach Petroleum NL v Johnson (No 2) (1995) FCR 119 applied

LA-RAINE  LESLEY KEEN v TELSTRA CORPORATION LIMITED

NSD 2528 OF 2005

RARES J

4 JULY 2006

SYDNEY

THE COURT ORDERS THAT:

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     I will make an order pursuant to O 62 r 4(2)(c) of the Federal Court Rules for the sum of the applicant's costs of the proceedings to be fixed in a total amount for the following reasons.  I noted in my reasons for judgment in [49], the amount at issue in this matter is insubstantial.  Ms Keen had to come to the court in order to have the decision of the Tribunal as to the manner in which the review was to be heard under s 69A of the Administrative Appeals Tribunal Act 1975 (Cth) reviewed.  She has succeeded in that part of her appeal but substantially failed on the other two matters that were raised as questions of law.

2                     Telstra submits that I should reserve the costs of the proceedings until after the outcome of the further review I have ordered is known.  Alternatively, it submits that each party ought pay its own costs and thirdly it submits that following inquiries made of a registrar of the court an amount of between $10,000 to $15,000 would be allowed on an assessment of a matter of this kind were it taxed. 

3                     Ms Keen argues that, excluding GST, her total costs of this appeal amount to about $38,000 including the $21,000 for solicitors’ fees, $12,000 for counsel.  Those amounts it should be noted include fees charged for attending the unsuccessful mediation which the parties voluntarily had with a registrar of the court.

4                     The purpose of a fixed costs order under O 62 r 4(2)(c) is to save the parties the time, trouble, delay, expense and aggravation in having a taxation proceed on a matter.  The court deals as a commonplace with administrative appeals of this nature.  This appeal raised three issues of law of no particular complexity or difficulty so far as the need for large amounts of solicitors’ preparation were concerned.  I must say I am quite staggered that an amount of $21,000 before GST has been incurred in solicitors costs of dealing with what seems to me to be a number of legal arguments which failed, until after lunch on the day of hearing, even to identify the definition of ‘proceedings’ in the Safety Rehabilitation and Compensation Act 1988 (Cth) to which I have referred to in my principal judgment.

5                     In Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120F-G von Doussa J said of O 62 r 4(2)(c) that:

‘The purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation.  The power is appropriate to be used in complex cases.’

6                     In my opinion it is also appropriate to be used in cases which are simple and in which there would be utility in the court cutting the Gordian knot of protracted fights about costs which is the hallmark of this particular piece of litigation.  It is a commonplace for the court to fix in administrative appeals under the Migration Act 1958 (Cth) an amount of costs for a successful party.

7                     In my opinion, it is appropriate that an amount of costs be fixed by the court so as to prevent yet further argument and delay in finalising this matter. 

8                     The consequence of the orders made today is that, regrettably, a further taxation must take place before the Administrative Appeals Tribunal which will no doubt put these parties to even more expense.  The dispute has generated, I was told at the hearing, very large issues as to costs between the parties.  I do not think it would serve the interests of either party or the interests of justice to allow it to be protracted by having yet more taxations in this court where the issues are simple and the amount at stake in an ordinary appeal of this kind not large. 

9                     Doing the best I can having regard to the fact that Ms Keen succeeded on one of three grounds, that there was a failed mediation with a registrar of the court and that it was ultimately necessary for Ms Keen to come to the court to have her right to have a review conducted in accordance with law in the tribunal on the taxation of costs, I think that the appropriate figure to fix so as to avoid any further protracted dispute between the parties as to costs is the sum of $13,500 (see Order 4 in Keen v Telstra Corporation Limited [2006] FCA 834).

Associate:

Dated:              20 July 2006