Federal Court of Australia

Norouzi v The Director of the Professional Services Review Agency (No 2) [2020] FCA 1600

ORDERS

THE COURT ORDERS THAT:

1.    The third respondent pay two thirds of the applicant’s costs of and incidental to the proceeding to be fixed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    These reasons for judgment must be read in conjunction with those which resolved the substantive judicial review proceeding; Norouzi v The Director of the Professional Services Review Agency [2020] FCA 1524 (principal judgment).

2    As is revealed by the orders and related reasons for judgment in the principal judgment, Dr Norouzi succeeded only as against the third respondent, the Determining Authority. In these circumstances, it would not, in my view, be appropriate to make any order for costs as against the second respondent, the committee, in Dr Norouzi’s favour. The first respondent, the Director, took no active role in the proceeding. For that reason, it would not be appropriate, in my view, to make any order for costs in Dr Norouzi’s favour against the Director. Another reason for that is that no substantive order was made against the Director.

3    Dr Norouzi did succeed in the quashing of that part of the Determining Authority’s final determination which directed repayment of a substantial sum to the Commonwealth and he had to come to Court in order to secure that particular order. Further, as is revealed in the principal judgment, in order to understand the jurisdictional errors revealed in the Determining Authority’s final determination, it was necessary to understand the anterior findings made by the Committee in its final report. What follows from that is that the relevant material in relation to the judicial review proceeding was not measured solely by the Determining Authority’s decision, and related reasons. Necessarily, in terms of preparation for trial, it embraced the inclusion of not just the committee’s final report but also, in my view, particular material before the committee, as contained in the Court Book. That resonated both in terms of necessary work by solicitors as well as necessary work by counsel in preparing for the proceeding in so far as it was necessary to understand the findings of the committee, the reasons for those findings and the particular related claims considered by the committee.

4    So, there is particular merit, in my view, in the submission made on behalf of Dr Norouzi that an instinctive reaction of just ordering 50% of his costs be paid by the Determining Authority would not do justice as between the parties in relation to costs. Even allowing for that, had the proceeding been confined just to a challenge against the Determining Authority’s decision, it is unlikely, in my view, that it would have occupied more than one day.

5    In theory, it would be possible to order that Dr Norouzi pay the costs of and incidental to the proceeding as it related to the challenge to the committee’s decision and to order that the Determining Authority pay Dr Norouzi’s costs of and incidental to the proceeding in so far as they related to the challenge to the Determining Authority’s decision. That would reflect strict forensic success and failure. However, that would make, in my view, for an extremely difficult taxing, or even fixing of costs by a registrar. Further, I consider that as the trial judge, I am rather better placed than a registrar to form a view as to an appropriate allocation of the degree of forensic success and failure and related necessary work. By fixing a percentage, I intend to do that.

6    I have taken into account the exchange of correspondence which has become exhibit 2. There is much to be said in favour of the submission made on behalf of the active party respondents, the committee and the Determining Authority, that the correspondence emanating from those acting on behalf of Dr Norouzi did not amount to want, as termed, a “Calderbank letter”: see Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333. That is not to say, given the generality of the costs discretion, that the correspondence exchange is irrelevant; only that I do not consider that it had that status. Equally, it seems to me that the respondents were really inviting Dr Norouzi to do little more than, effectively, walk away. He succeeded rather more than that.

7    Taking the degree of forensic success and failure into account, as revealed in the principal judgment, and being of the view that the exchange of correspondence is not determinative one way or the other in relation to the awarding of costs, in my view, the best course to follow in the exercise of the Court’s costs discretion in this case, is to fix a percentage of costs which takes into account that some, if not indeed much, of the work entailed just in a challenge to the Determining Authority’s final determination embraced also understanding the committee’s decision and the material before the committee.

8    The fixing of such a percentage is necessarily a robust task. I expressly take into account, as revealed in the principal judgment, a comprehensive failure by Dr Norouzi as against the committee. I counterbalance that with the consideration which I have mentioned, as to an evidentiary overlap and related preparatory overlap by counsel and solicitor.

9    In all of the circumstances, the appropriate percentage to award, in my view, is two thirds but only as against the third respondent, the Determining Authority. It may well be that ultimately the costs come to be paid out of consolidated revenue, reflecting the constitutional position in relation to the public revenues of the Commonwealth. Even so, it seems to me that it would be erroneous in principle, given the committee’s comprehensive success, to make it, in any formal way, liable for costs.

10    The order as to costs therefore is that the third respondent pay two thirds of the applicant’s costs of and incidental to the proceeding to be fixed by a registrar if not agreed.

Associate:    

Dated:    3 November 2020