FEDERAL COURT OF AUSTRALIA

Su v Australian Fisheries Management Authority (No 3) [2008] FCA 2018

PRACTICE AND PROCEDURE – costs and taxation – discretionary jurisdiction of the Court to fix a gross sum for costs under O 62 r4(2)(c) Federal Court Rules- whether hardship caused by seizure of vessel relevant – no evidence of hardship - whether delay caused by taxation of costs provides sufficient circumstances to warrant the exercise of the discretionary power

Federal Court Rules 1979

Harrison v Schipp (2002) 54 NSWLR 738

MEI YING SU, YU SHEN CHEN and YU MING KUO v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY and COMMONWEALTH OF AUSTRALIA

NTD5 of 2008

REEVES J

19 December 2008

DARWIN

THE COURT ORDERS THAT:

1.         The notice of motion dated 15 December 2008 be dismissed. 

2.         The applicants pay the respondents’ costs of the notice of motion, to be taxed. 

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.

EX TEMPORE

REASONS FOR JUDGMENT

1                     This is an application under O 62, rule 4(2)(c) of the Federal Court Rules 1979 to fix a gross sum for the costs I ordered in these proceedings on 7 October 2008.  It is clear I have the power to fix a gross sum for those costs, and it is common ground between the parties that I also have the power to fix a gross sum in relation to a part of the costs.  That appears to have been the course taken in Harrison v Schipp (2002) 54 NSWLR 738.  The power conferred by O 62, rule 4 is a discretionary power which is not confined and may be exercised whenever the circumstances warrant its exercise.  The circumstances relied upon by the applicants are the hardship that is being caused to them and the costs and delay associated with the alternative course, namely, a taxation of the costs in the usual way.

2                     As to the question of hardship, Mr Roper who appeared for the applicants, has relied upon an affidavit sworn by Ms Su, wherein she deposes to the effects that the seizure of the vessel has had on the applicants.  Ms Su has detailed the costs the applicants have incurred with dry docking the vessel, the loss of revenue that has been incurred by not having the vessel available for fishing and the costs that the partnership (between the three applicants) has had to meet while the vessel has been in the possession of the Commonwealth of Australia.  However, nowhere in that affidavit does Ms Su give any details of the hardship, if any, suffered by any of the applicants, as a consequence of these costs or loss of revenue.

3                     I am unaware as to what their individual circumstances are.  I do not know if the seized vessel is their only means of income and if its seizure caused any personal hardship to all, or some, of the members of the partnership.  For all I know, they may be very wealthy individuals who are not suffering any significant hardship by the vessel being seized over the past period of months. 

4                     As to the costs of taxation, I have been referred to an email by Mr Dylan Walters which estimates that it will cost up to $16,500 to prepare a bill of costs in taxable form. Apart from that I do not know what costs will be associated with taxing the bill of costs. By comparison, Mr Roper says that the process of fixing a gross sum will cost $10,000. But that will only apply if I accede to the application made in paragraph three of the notice of motion that I fix those costs in the sum of $10,000.  There is no evidence before me to indicate why the amount of $10,000 is an appropriate amount for that work and I am not myself experienced enough with the taxation of costs to know whether it is. To my mind that really presents a false comparison. 

5                     As to the question of delay, there is no evidence before me at all. Mr Roper eventually asked me to take judicial notice of the fact that there would be a delay.  I am prepared to take judicial notice of the fact that there will be a delay in obtaining a certificate from a taxing master upon a taxation of a bill of costs in this matter in taxable form. On the other hand, I consider I should also take judicial notice of the fact that there will be some delay involved in whatever process is followed, including the one that is presently proposed.

6                     In short, even taking judicial notice that there will be some delay involved in a taxation of the costs, I am unable to assess whether or not any significant delay will be caused by the taxation process over and above the process that the applicants have presently proposed. 

7                     As against these circumstances relied upon by the applicants, Mr Allanson for the respondents, has pointed to the necessity, which I accept, for the applicants to persuade me that the circumstances they have pointed to are relevantly linked to the exercise of my discretion.  I have some difficulty doing that, particularly in relation to the question of hardship.  This is so because even if I were to infer that the applicants have suffered some hardship, as a consequence of the vessel being seized, that hardship is different to any hardship that may be occasioned by the costs and delay associated with the taxation of the costs in this matter in the ordinary course. Furthermore this latter hardship will ultimately be dependent upon whether or not a stay is ordered on the costs order, and that, it seems to me, is heaping speculation upon speculation.

8                     At the end of the day, I am not satisfied that the applicants have demonstrated circumstances that justify my exercising my discretion to fix a gross sum for the costs I have ordered under O 62, rule 4(2)(c).

Associate:

Dated:         3 February 2009