FEDERAL COURT OF AUSTRALIA

Peek v CEO, Australian Government Solicitor (No. 6) [2008] FCA 1502

GREGORY JAMES PEEK v CHIEF EXECUTIVE OFFICER, AUSTRALIAN GOVERNMENT SOLICITOR and MEGAN PITT

NSD 880 of 2005
NSD 1480 of 2006

EDMONDS J

3 OCTOBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant’s notices of motion both dated 25 July 2008 be dismissed.

2.                  The applicant pay the first and second respondents’ costs on the motions.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The motions on notice, both dated 25 July 2008, seek orders that costs claimed in the bill of costs filed by the respondents in each proceeding be disallowed, in whole or in part, pursuant to O 62 rr 18, 19 and 36 of the Federal Court Rules. 

2                     It is difficult to see the relevance of r 18 or r 19 of O 62 to the motions before the Court.  On the other hand, under r 36 of O 62, the Court or a judge of the Court may, at a trial or hearing, or upon any application and whether or not objection is taken:

‘(a)      direct that any costs which have been improperly, unreasonably or negligently incurred be disallowed;

(b)       direct the taxing officer to examine the costs incurred, and to disallow such costs as he shall find to have been improperly, unreasonably or negligently incurred; or

(c)        direct that a party whose costs are so disallowed shall pay to the other parties the costs incurred by those parties in relation to the proceeding in respect of which his costs have been disallowed.’

3                     There is no indication in the notices of motion filed as to the basis upon which the applicant seeks the orders set out therein.  Rules 36(1)(b) and (c) of O 62 are clearly not relevant.  Having regard to the terms of the orders sought, it seems to me that these motions should be regarded and dealt with on the basis that they are brought in reliance on r 36(1)(a) of O 62; that is, that they seek orders disallowing costs in each proceeding on the basis that such costs have been improperly, unreasonably or negligently incurred.

4                     The applicant adduced no evidence in support of the motions and adduced no evidence going to the issue as to whether any costs have been improperly, unreasonably or negligently incurred.  When the matter came before me on 6 August 2008, I made the following orders:

(1)               The applicant has leave to file any evidence on which he relies on or before 3 September 2008.

(2)               The second respondent has leave to file any evidence in reply on which she relies on or before 24 September 2008.

(3)               The motion be listed for hearing on 3 October 2008 (today) at 9.30 am.

5                     The applicant did not comply with Order 1.  Indeed, no evidence was filed subsequent to 3 September 2008, and no evidence is available to be filed in court this morning.  The second respondent filed evidence in the form of an affidavit of Ms Janine Lynette Smith in both proceedings, sworn on 24 September 2008 and filed that day in compliance with Order 2.  When the matters came before me this morning, the applicant sought an adjournment to enable him to file and serve an affidavit in support of the motions.

6                     The basis on which he sought the adjournment was that he was well advanced in the preparation of an affidavit upon which he would rely in support of the motions.  He apologised for the fact that he had not complied with the timetable previously laid down by the court.  However, no explanation was forthcoming as to why the timetable had not been complied with.  It was pointed out to the applicant that on the last occasion this matter was before me, I indicated that if either party failed to comply with the timetable laid down on that occasion I would not allow any affidavit to be read.

7                     In the absence of any evidence in either proceeding going to the issues of the improper, unreasonable or negligent incurrence of any costs, there is no alternative but for me to dismiss both motions and order that the applicant pay the first and second respondents’ costs in both proceedings.

Associate:

Dated:         10 October 2008