FEDERAL COURT OF AUSTRALIA

MYBV v Secretary, Department of Social Services (No 2) [2017] FCA 481

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the respondent’s costs fixed at $9,500.

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

REASONS FOR JUDGMENT

TRACEY J:

1    On 6 April 2017, I dismissed MYBV’s appeal from a decision of the Administrative Appeals Tribunal: see MYBV v Secretary, Department of Social Services [2017] FCA 352. I ordered that MYBV pay the Secretary’s costs.

2    The Secretary applied to the Court under r 40.02(b) of the Federal Court Rules 2011 (Cth) for a lump sum costs order to be made pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth).

3    The Secretary’s application was supported by an affidavit sworn by a solicitor employed by the firm acting for the Secretary.

4    The solicitor’s affidavit discloses that the sum of the professional costs incurred by the Secretary in defending MYBV’s appeal was $12,733.08. The Secretary conceded that a 25% discount should be allowed and seeks to recover the sum of $9,549.81.

5    I afforded both parties the opportunity of dealing with the application by way of short written submissions. Neither of them availed themselves of this opportunity.

6    It is well established that the chief purpose served by the power to award lump sum costs is the avoidance of expense, delay and aggravation involved in preparing bills of costs and taxing those bills: see, for example, Leary v Leary [1987] 1 WLR 72 at 76A (Purchas and May LJJ); Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; [1995] FCA 350 at p 3 (von Doussa J); Brookfield v Davey Products Pty Ltd [1997] FCA 1462 at p 4 (Branson J); Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930 at [4] (Rares J); Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority (No 2) (2014) 315 ALR 131 at 137; [2014] FCA 444 at [30] (Mortimer J). The discretion to award lump sum costs is not confined to complex cases where large sums are involved but also extends to more simple proceedings. Such an order may be appropriate if the time and expense required to give effect to the costs orders in the normal way are not warranted: see, for example, Byrnes v Brisconnections Management Company Limited (No 2) [2009] FCA 1432 at [51] (Emmett J); Playcorp Group of Companies Pty Ltd v Bodum A/S (No 2) [2010] FCA 455 at [3] (Middleton J); Soden v Croker (No 3) [2016] FCA 249 at [8] (Perry J).

7    In cases in which the Court deems it appropriate to contemplate the making of lump sum costs orders, it does not engage in the detailed scrutiny which is adopted when bills are being taxed. A broad brush approach is applied and any discount made having regard to the evidence before the Court: see Leary v Leary [1987] 1 WLR 72 at 76 (Purchas and May LJJ); Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 21–22; [1999] FCA 673 at [79] and [84] (O’Loughlin J); Sony Entertainment (Australia) Limited v Smith (2005) 215 ALR 788 at 813; [2005] FCA 228 at [197]–[198] (Jacobson J); Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd (2008) 249 ALR 371 at 377; [2008] FCA 1051 at [23] (Finn J). A conservative stance is adopted: see Dunstan v Seymour [2006] FCA 917 at [25] (Mansfield J).

8    I have come to the view that a lump sum costs order is appropriate in this case. The application is not opposed. MYBV’s appeal from the Administrative Appeals Tribunal related to her claimed entitlement to a disability support pension over a period of a few months in 2014. Although MYBV was legally represented at the hearing, some uncertainty surrounds the question of her on-going representation. If she has not instructed solicitors in respect of the Secretary’s application, it would appear likely that she would have to participate unaided in any taxation. The amount of lump sum costs claimed is relatively small and the costs and time involved in the preparation of a bill and a taxation would, almost certainly, be disproportionate to the amount sought: see, for example, Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916 at [28] (Mansfield J); Julien v Secretary, Department of Employment and Workplace Relations (No 2) [2009] FCA 1259 at [12] (Spender J); Cameron v Secretary, Department of Human Services (No 2) [2015] FCA 1201 at [9] (Yates J). The amount sought is, in my view, reasonable in the circumstances.

9    A lump sum costs order should be made in the sum of $9,500.

Associate:

Dated:    10 May 2017