FEDERAL COURT OF AUSTRALIA

Linke v T T Builders Pty Ltd [2014] FCA 672

THE COURT ORDERS THAT:

1.    The application for an order that the fees payable in respect of the proceedings in this Court be reduced to the level applicable in the Federal Circuit Court of Australia is refused.

2.    The application for an order that certain issues in these proceedings be referred for inquiry and report by an expert, as proposed by the applicant, is refused.

3.    Costs be in the cause.

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

REASONS FOR JUDGMENT

1    On 6 June 2014, I announced to the parties my decisions on two interlocutory applications, and said that I would publish reasons later. The following are my reasons for those decisions.

2    The proceedings concern a building dispute. The first respondent (TT Builders) is a building company. The second respondent (Mr Tessitore) is the sole director of TT Builders and is licensed as a Building Work Contractor under the Building Work Contractors Act 1995 (SA) (BWC Act). In late 2010, 2011 and early 2012, TT Builders and Mr Tessitore carried out building work on a residential property at Coromandel Valley in South Australia owned by TT Builders (the Property).

3    The applicant entered into a contract with TT Builders on 2 February 2012 to buy the Property. Settlement occurred on 28 February 2012. The third respondent (HRE) was the land agent retained by TT Builders on its behalf to sell the Property.

4    The applicant claims to have identified a number of defects and deficiencies in the Property. He commenced proceedings in the Federal Magistrates Court (now the Federal Circuit Court) (the FC Court) on 5 July 2012, seeking, in the alternative, compensation, damages, and the costs of rectification, as well as incidental relief. On 27 February 2014, the FC Court ordered that the proceedings be transferred to this Court, at a stage when it was thought they were ready for trial.

5    The principal causes of action on which the applicant relies are as follows. As against TT Builders and Mr Tessitore, damages or compensation for breach of the statutory warranties under the BWC Act of which he is deemed to have the benefit by reason of s 32(3) of that Act; as against TT Builders and Mr Tessitore, damages for breach of the duty he alleges they owed him to take reasonable care in the performance of the building work; as against HRE, damages for misleading or deceptive conduct, or for misrepresentations, in respect of statements said to have been made by HRE’s agent in relation to his purchase of the property; as against all three respondents, damages in respect of misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (Cth). In addition, he pleads other statutory causes of action arising under the Misrepresentation Act 1972 (SA) and the Australian Consumer Law.

6    TT Builders joined CGU Insurance Ltd as a third party, claiming an entitlement to indemnity under an insurance policy. However, that claim has now been resolved by agreement, and it need not be mentioned further.

7    The above is a somewhat brief account of the proceedings, but it is sufficient to provide the background to the two interlocutory applications of the applicant, namely:

(1)    An application that the Court order that the fees otherwise payable in this Court be reduced to the fees which would have been applicable had the proceedings remained in the FC Court;

(2)    An application for an order, pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), that certain issues in the proceedings be referred to a referee for inquiry and report.

The application for the reduction of fees

8    The Federal Court and Federal Circuit Court Regulation 2012 (Cth) (the 2012 Regulations) prescribes the fees payable in respect of proceedings in this Court. Those regulations, in the case of this Court, are made pursuant to s 60(1) of the FCA Act which provides that the Governor-General may make regulations prescribing, amongst other things, “the fees to be paid in respect of proceedings in the Court”. Regulation 2.02 of the 2012 Regulations specifies, by reference to Sch 1, the fees payable in respect of proceedings. Regulation 2.03 provides (relevantly):

(1)    A fee in relation to a proceeding is payable as set out in this section, unless the relevant court for a proceeding, or a Judge, Federal Magistrate or Registrar of that court, directs otherwise.

(2)    A filing fee is payable by the person for whom the document is filed.

(3)    A hearing fee or a setting down fee is payable by:

(a)    if the hearing is for a cross-claim or cross-appeal only—the cross-claimant or cross-appellant; or

(b)    if the hearing is for an interlocutory application—the person who made the interlocutory application; or

(c)    in any other case—the applicant (other than a cross-applicant) or appellant (other than a cross-appellant).

By reg 2.05, certain persons are exempted from a liability to pay the fees. The applicant did not invoke that regulation. Regulation 2.06 permits the Registrar or an authorised officer of the Court to exempt an individual from paying a fee if the Registrar or authorised officer considers that the fee would cause financial hardship to the individual. The applicant did not invoke reg 2.06 in support of his application.

9    He contended, instead, that reg 2.03(1) vested in this Court a discretion to “direct otherwise”, namely, to direct that a fee other than that set out in Sch 1 to the 2012 Regulations be paid and that this permitted the Court to order that the fees applicable to proceedings in the FC Court be those to be paid in respect of proceedings in this Court.

10    On its face, reg 2.03(1) seems to have the effect for which the applicant contended. I note, however, that the predecessor to the 2012 Regulations (the Federal Court of Australia Regulations 2004 (Cth)) (the 2004 Regulations) provided for the payment of reduced fees in certain circumstances. The 2012 Regulations contain no counterpart to this part of the 2004 Regulations. This could support an argument that a reduction in the fees payable is no longer available.

11    However, I consider that there is no reason to construe reg 2.03(1) narrowly, that is, as permitting only a waiver of an entire fee rather than the less severe step of waiving (in effect) only part of the fee. Accordingly, I will proceed on the basis that the Court does have power to reduce the fees.

12    The applicant sought an exercise of the discretion to order payment of reduced fees for two principal reasons. First, because the transfer of the proceedings from the FC Court to this Court had, from his perspective, been involuntary, and, secondly, because of the hardship which paying the fees applicable in this Court would cause.

13    The first reason requires consideration of the circumstances by which the proceedings came to be transferred to this Court.

14    Section 39 of the Federal Circuit Court of Australia Act 1999 (Cth) provides for the discretionary transfer of proceedings from the FC Court to this Court in certain circumstances. It provides (relevantly):

(1)    If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to the Federal Court or the Family Court.

(2)    The Federal Circuit Court of Australia may transfer a proceeding under this section:

(a)    on the application of a party to the proceeding; or

(b)    on its own initiative.

(3)    In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Circuit Court of Australia must have regard to:

(a)    any Rules of Court made for the purposes of subsection 40(2); and

(b)    whether proceedings in respect of an associated matter are pending in the Federal Court; and

(c)    whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and

(d)    the interests of the administration of justice.

…

As can be seen, the FC Court may transfer a proceeding under s 39 on the application of a party to the proceeding or on its own initiative. In deciding whether to transfer a proceeding to this Court, the FC Court must have regard, amongst other things, to the relevant rules of the FC Court, to whether the resources of the FC Court are sufficient to hear and determine the proceedings, and to the interests of the administration of justice.

15    Rule 8.02 of the Federal Circuit Court Rules 2001 (Cth) is the relevant rule. It provides:

(1)    The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.

(2)    Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.

(3)    Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.

(4)    In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:

(a)    whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;

(b)    whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;

(c)    whether the proceeding will be heard earlier in the Court;

(d)    the availability of particular procedures appropriate for the class of proceeding;

(e)    the wishes of the parties.

By r 8.02(2), a request for a transfer must be made on or before the first court date for the proceeding, unless the Court otherwise orders. In addition, such a request must be included in a response, or made by application supported by affidavit. Relevant matters under r 8.02(4) include whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties, and whether the proceeding will be heard earlier in the FC Court.

16    It seems that the possible transfer of the present proceedings to this Court was first raised by the FC Court Judge having the conduct of the matter at a directions hearing on 23 July 2013. The Judge said that he would consider the issue at a further directions hearing on 26 July 2013.

17    By an affidavit affirmed on 24 July 2013, the applicant deposed to a number of matters in opposition to the contemplated transfer. Some of the affidavit is argumentative in content but, nevertheless, it indicated the applicant’s opposition to a transfer. Amongst other things, the applicant drew attention to the higher fees payable in this Court, noting that, for a trial taking 15 days (which is the current estimate for these proceedings), the hearing fees payable in this Court would amount to approximately $20,000 more than the hearing fees payable in the FC Court.

18    Although the applicant drew attention to the greater fees applicable in this Court, he did not depose to circumstances of financial hardship which paying those fees would entail. He referred only to the substantial costs which he has already incurred in carrying out rectification works, and deposed that his position would be “exacerbated by the increased costs of prosecuting my case in the Federal Court”.

19    The applicant also deposed to other matters bearing upon the transfer proposed by the Judge, including the absence of proceedings involving an associated matter in this Court, the absence of issues of general importance in the proceedings, the opposition of the other parties to a transfer and the prospect of greater inconvenience to the parties.

20    The applicant sought, in the event that the Court did determine to transfer the proceedings, orders from the FC Court that the FC Court fees continue to apply to the proceedings in this Court, including in respect of the daily hearing fees or, in the alternative, an order that payment of the daily hearing fees be deferred until judgment and the making of costs orders so that the identity of the party ultimately liable to pay the fees would be known.

21    The material before the Court presently did not indicate what transpired at the directions hearing in the FC Court on 26 July 2013 in relation to the foreshadowed transfer to this Court. I note, however, that after making a number of procedural orders regarding pleadings and discovery, the Judge made an order (no 7) as follows:

The decision in relation to fees is reserved.

It is not clear what issue with respect to fees the FC Judge did reserve, having regard to an absence of power of the FC Court to make orders with respect to the fees payable in relation to proceedings in this Court.

22    The issue of a transfer of the proceedings to this Court does not seem to have been addressed at the subsequent directions hearings in the FC Court on 12 August 2013, 19 August 2013, 17 September 2013, 16 October 2013 and 4 December 2013. However, on 27 February 2014, the FC Judge made an order which, relevantly, is as follows:

UPON APPLICATION MADE TO THE COURT by Mr T Grace of counsel appearing for the applicant, Mr S Ryan appearing for the first and second respondents, Ms N Tsiboukis appearing for the third respondent and Mr M Tilley appearing for the third party

UPON ITS OWN INITIATIVE AND WITH THE CONSENT OF THE PARTIES THE COURT ORDERS THAT:

1.    All extant interim applications are dismissed with costs to be in the cause.

2.    This proceeding is transferred to the Federal Court of Australia.

Presumably, the first of these orders encompassed a decision on the matter reserved by the Judge on 26 July 2013.

23    There is a transcript of the submissions made at the directions hearing on 27 February 2014, the relevant portion of which is as follows:

Mr Grace:    Your Honour, the situation is that not a lot has moved forward since the last time, in that we still have not been able to fully agree on the referral of the matter out to an expert in relation to certain aspects of it. But it is the agreement – with agreement of all parties, I think, that we have come to the view that even if the matters are referred out to an expert, the residual amount of issues that need to go to the trial in Court would be – would take in excess of five days. And for that reason, we ask that the Court, on its own initiative, transfer the matter to the Federal Court of Australia on the basis that, as we understand from what Your Honour has previously said, that it will be difficult or impossible for this Court to hear a trial of that length and there is a possibility, of course, that if the parties can’t agree in relation to the expert determination aspects of it, that the trial would be very much in excess of the few days, and perhaps about five, that would otherwise be the case anyway.

    …

    We ask that the Court consider on its own initiative, on the basis that we would then enliven perhaps, or enable the parties to subsequently make submissions to the Federal Court as to the costs of the proceedings being at some sort of other rate than the usual rate that is in the Federal Court. I can take Your Honour through the mandatory factors you have to consider and the relevant factors, if you wish, but I don’t need to exercise the Court’s time with that if you don’t need that.

His Honour:    Okay. Well, let’s have a look at the minutes. Thank you. Well I suppose it is the Court’s own initiative, but I will say I think we ought to put in here that it is with your consent.

Mr Grace:    Thank you, Your Honour.

24    The Judge then gave short ex tempore reasons for the transfer as follows:

This matter has been in this Court for quite some time. The proceedings were commenced on 5 July 2012. It is a building dispute and there are now four parties – the applicant, two respondents and third respondent. The parties have indicated that they believe that the matter will take more than five days for the trial to be dealt with. This Court has been looking at whether it is possible to, firstly, reduce the amount of time that might be needed for the trial and, secondly, to have the matter dealt with by some alternative dispute resolution process but, at this stage, without success. The parties have indicated today that, if the matter is to be transferred to the Federal Court, that now is the correct time.

25    Some matters are explicit in the transcript passages recited above or can be inferred from them. First, that it was the FC Judge who first raised the issue of possible transfer. Secondly, that the FC Judge had indicated to the parties that it would be difficult, and perhaps impossible, for the FC Court to undertake a trial taking more than five days. Thirdly, relying on that intimation, the applicant, with the support of the other parties, then proposed the transfer to this Court. Fourthly, that in proposing the transfer, the applicant was conscious of the implications with respect to fees and sought to have the order for transferral made on the Court’s own initiative with a view to preserving his position to make an application of the present kind. Fifthly, the attitude to transfer which the applicant indicated on 27 February 2014 was markedly different from that which the applicant had taken on 26 July 2013.

26    In an affidavit filed in this Court supporting the application for reduction of fees, the applicant’s solicitor deposed that, although the FC Judge had said that the FC Court is unable to hear trials exceeding five days in duration, that limitation on the exercise by the FC Court of its jurisdiction had not previously been indicated to prospective litigants.

27    The matters which to my mind bear upon the exercise of the discretion to order payment of reduced fees in respect of proceedings transferred to this Court seem to include:

(a)    The fees fixed by the Regulations are the fees ordinarily applying, and that an exercise of discretion on proper grounds is required if that position is to be altered. Accordingly, the party applying for the reduction has an evidential and persuasive onus;

(b)    Regard must be had to the objects and purposes apparently sought to be achieved by the imposition of fees;

(c)    The circumstance that the difference in fees payable in respect of FC Court proceedings and proceedings in this Court reflects to some extent the differences in the manner of conduct of the proceedings in the respective Courts;

(d)    The expectation that ordinarily parties having the benefit of the manner of conduct and proceedings in this Court will pay the fees associated with that manner of conduct;

(e)    The circumstances in which the proceedings came to be transferred to this Court and, in particular, whether the transfer occurred involuntarily, or with the consent or acquiescence of the applying party;

(f)    The financial circumstances of the applying party and, in particular, any indications of financial hardship;

(g)    The personal circumstances more generally of the applying party;

(h)    The nature and importance of the underlying proceedings and, in particular, any public interest in having the matter proceed to determination;

(i)    Whether there are related proceedings in this Court involving the same parties in respect of which full fees have been paid or in respect of which relief has been granted.

28    No doubt there will be other relevant considerations indicated by the circumstances of particular cases. What can be said is that the discretion is to be exercised judicially having regard to all the relevant circumstances of each case.

29    In exercising the discretion in the present case, a number of matters seem to me to be pertinent. First, the applicant has not deposed positively to an inability to pay the fees applicable in this Court or to financial hardship which would be occasioned by such payment. Secondly, although the applicant initially opposed the transfer of the proceedings from the FC Court to this Court, ultimately the transfer was proposed by him. Counsel acknowledged that the applicant saw an advantage in this Court having the power to order referral to a referee even in the absence of consent by all parties. In addition, it seems that the FC Judge was prepared to order the transfer only on the basis that it was with the consent of all parties. The applicant’s consent appears therefore to have been critical to the Judge’s decision to transfer. Thirdly, the applicant contemplates, with or without a referral to a referee, a substantial trial. It is not in the public interest that the resources of this Court should be available for such a substantial trial without the usual fees attributable to such resources being paid. Fourthly, in the event that the applicant is successful, the effect of an order for costs may well be that he will be able to recover the fees from one or more of the respondents. Fifthly, these proceedings, although important to the parties, are not of a kind in which it can be said that the public interest is enlivened. Finally, there were no associated proceedings involving the same parties in this Court.

30    In my opinion, these matters militate against an exercise of the discretion in favour of the applicant presently. Accordingly, I decline to exercise the discretion under reg 2.03 to reduce the fees otherwise payable in this Court to the same level as is applicable in the FC Court.

31    The applicant made a submission in the alternative, namely, that the Court should order a deferral of the time at which the applicant must pay the fees. A proper basis for such an order of deferral has not been shown and I also decline that alternative application.

Referral to a referee

32    The applicant seeks an order, in effect, pursuant to s 54A of the FCA Act, that certain issues in the proceedings be referred to a referee for enquiry and report.

33    This proposal had its origins while the proceedings were still in the FC Court as the parties, and in particular the applicant, sought to identify means by which the length of the contemplated trial could be reduced. The applicant proposed that the parties agree on the appointment of an expert “determinator” who, acting in accordance with the Expert Determination Rules 2010 of the Institute of Arbitrators and Mediators Australia (the IAMA Rules), would deliver a binding report on the existence or otherwise of the claimed defects and a binding assessment of the reasonable costs of rectification of those defects found to exist.

34    It is, of course, open to the parties to agree upon this method as a means of resolving at least part of their dispute. However, the Court cannot require litigants to enter into binding agreements of the contemplated kind for the resolution of disputes by a “determinator”. Recognising this, the applicant sought referral to a referee under s 54A of the FCA Act. Section 54A provides:

(1)    Subject to the Rules of Court, the Court may by order refer:

(a)    a proceeding in the Court; or

(b)    one or more questions arising in a proceeding in the Court;

to a referee for inquiry and report in accordance with the Rules of Court.

(2)    A referral under subsection (1) may be made at any stage of a proceeding.

(3)    If a report of a referee under subsection (1) is provided to the Court, the Court may deal with the report as it thinks fit, including by doing the following:

(a)    adopting the report in whole or in part;

(b)    varying the report;

(c)    rejecting the report;

(d)    making such orders as the Court thinks fit in respect of any proceeding or question referred to the referee.

35    The applicant submitted that referral to a referee may have the effect that, instead of a 15 day trial in this Court, a trial of about 5 days may be sufficient. He referred to the savings of costs which would thereby be achieved; to the advantages to TT Builders and Mr Tessitore as self-represented litigants in the less formal manner of conduct of proceedings by a referee; and to the advantage to the parties in having an indication of the likely quantum of the applicant’s claim at an early stage in the proceedings. Since that submission was made, TT Builders and Mr Tessitore have again become represented, with the effect that the second of these submissions loses its force.

36    I agree that referral to a referee has some attractions. However, for a number of reasons, I am not satisfied that it is an appropriate course for the Court to adopt in the present case.

37    First, there are some difficulties in defining discrete issues to be referred to a referee. The applicant acknowledged the complexity in this respect and has attempted to address it. However, the advantages of referral to a referee of issues concerning the identification of defects are very much diminished if the Court will still have to hear evidence about the existence, nature and extent of defects in order to determine issues in the proceedings which cannot practically be referred to the referee.

38    The applicant’s proposal involves that prospect. He suggests that the referee determine whether the claimed defects constituted a breach of the statutory warranties under the BWC Act, or fall short of the standard of care which may be expected of the ordinarily careful and competent builder and, if so in either case, identify whether the amounts actually expended by the applicant, or claimed by him, for rectification of each defect are reasonable. However, it is not practical to refer to the referee the “acceptable quality” claims raised by the applicant under the Australian Consumer Law. Those claims rest on representations and assurances said to have been made to the applicant by HRE’s agent. The precise content and effect of the attributed statements (if they are found to have been made) is a matter for determination in the trial: it is not a matter which can be left to the referee. There is, therefore, the prospect of the Court having to determine whether the claimed representations and assurances were made; if so, their effect; and, having regard to the determined effect, whether the condition of the Property meant that they were misleading or deceptive. There is an obvious prospect for overlap in the determination of these matters with the matters to be determined by the referee.

39    To my mind, this consideration counts strongly against the proposed referral.

40    Secondly, the attitude of the parties is important. HRE is generally supportive of the proposal, but raised issues as to the ability of a single referee to express opinions both as to the existence or otherwise of a claimed defect and as to the costs of rectifying it. The applicant contemplates that the referee may enlist the assistance of further experts. However, the engagement of others in this way does not seem to be contemplated by the terms of s 54A. The Court could, of course, refer the costing issues to another expert, but this involves additional complexity in the process.

41    When the Court heard the submissions on this issue, TT Builders and Mr Tessitore were unrepresented. Ultimately, they did indicate agreement to a referral, but the circumstances in which that agreement was expressed, and their previous opposition to a referral, seemed to indicate some ambivalence. However, shortly before the Court announced its decision, TT Builders and Mr Tessitore again obtained legal representation. Their counsel said that their attitude was now one of opposition to referral of part of the issues in the trial to a referee. Thus, the applicant has qualified support for the proposal from one other party only.

42    Thirdly, there are issues of costs. For reasons which need not be presently outlined, there appear to be issues as to whether obligations imposed by the Court with respect to the payment of the referee’s costs may be met in a timely way.

43    Another difficulty arises from the plea of TT Builders and Mr Tessitore that the applicant has denied them the opportunity to repair some of the defects at less cost than the applicant claims in the proceedings. This seems to be in the nature of a plea by TT Builders and Mr Tessitore that the applicant has failed to take reasonable steps to mitigate his loss. That is not an issue which can be referred to a referee. It seems that that issue too will require the Court to hear some evidence about the defects and the means of repair with a consequential potential for the inquiry before the referee to overlap with the proceedings of this Court.

44    Finally, issues commonly arise when a Court is asked to adopt a report of a referee. The decision of the Supreme Court of South Australia in Built Environs Pty Ltd v Saunders International Ltd [2012] SASC 111 is an example of the kinds of difficulties which can arise. The terms of s 54A(3) provide some scope for difficulties of that kind to occur in this case.

45    The Court is sympathetic to the applicant’s attempts to confine the costs of a trial. However, on balance, I am not satisfied that the referral of certain issues to a referee has sufficient advantages to warrant the Court adopting that course. On the contrary, I consider that such a referral involves the potential for difficulties which the Court should endeavour to avoid.

46    These are my reasons for refusing to exercise the discretion to order a reduction of the fees payable under the Federal Court and Federal Circuit Court Regulation 2012 (Cth) and for refusing to refer certain issues in the proceedings to a referee for inquiry and report.

Associate:

Dated:    25 June 2014