Federal Court of Australia

Lim v Flinders University of South Australia (No 4) [2025] FCA 377

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application to revoke the order in paragraph 3 of the orders made on 17 March 2025 is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    On 17 March 2025 the Court made orders resolving an application for review of a Registrar’s decision fixing a sum of costs assessed on a lump sum basis. The orders (as later amended) were as follows:

1.    The order of the Registrar made on 30 October 2024 is set aside.

2.    For the purposes of paragraph 1 of the orders made on 2 March 2023, costs are fixed in the amount of $92,914.00 excluding GST.

3.    The applicant is to pay the respondents’ costs of and incidental to the interlocutory application dated 20 November 2024, such costs are fixed in the amount of $1,750.00 excluding GST.

4.    The parties have liberty to apply to vary or revoke the order in paragraph 3, such liberty to be exercised on or before 31 March 2025.

5.    A party may exercise the liberty in paragraph 4 by filing and serving a written submission not exceeding three pages together with any affidavit on which the party relies.

2    Reasons were published as:  Lim v Flinders University of South Australia (No 3) [2025] FCA 294 (Lim 3).

3    The effect of orders 1 and 2 (as amended) was to reduce the sum payable by the applicant, Dr Lim, to the respondents, from $116,090.21 to $92,914.00. The liability to pay costs arose from an order made on 2 March 2023, following the dismissal of the originating application in this proceeding: see Lim v Flinders University of South Australia [2022] FCA 1361 (Lim 1) and Lim v Flinders University of South Australia (No 2) [2023] FCA 147 (Lim 2). By that application Dr Lim had sought an extension of time in which to appeal from a judgment dismissing an application for relief under the Fair Work Act 2009 (Cth) (FW Act).

4    As far as the Court is aware, no appeal was commenced from the judgments and orders made in Lim 1 and Lim 2.

5    Dr Lim was partially successful on her application for review of the Registrar’s decision in that the lump sum was reduced. However, the Court rejected most of her arguments, including her argument that costs should be fixed in the sum of $13,190.89. At the conclusion of the review hearing, the Court fixed a sum of costs payable by Dr Lim to the respondents reflecting the outcome of the review proceeding. The sum was fixed in the amount of $1,750.00 reflecting the Court’s view of the issues in dispute, the time expended in the preparation for and attendance at the hearing, the costs the Court considered ought reasonably be expected to be charged to the respondents in respect of its attendance at the review (and associated preparations) and the degree to which each party had been unsuccessful in their respective arguments.

6    On 31 March 2025, Dr Lim exercised the liberty to apply to vary or revoke the order fixing those costs in the sum of $1,750.00. The parties have confirmed that the Court may determine that application on the papers. The respondents did not seek to be heard other than to say that the order should be maintained for the reasons pronounced at the hearing of the review application.

7    Dr Lim relies upon a submission dated 31 March 2025 and an affidavit sworn on the same day.

8    The effect of Dr Lim’s argument is that the order fixing the respondents’ costs in the amount of $1,750.00 was unfair and unreasonable.

9    To the extent that Dr Lim submits that she was not afforded procedural fairness, I do not accept the submission. Dr Lim is a self-represented litigant. However, she has been engaged in litigation with the respondents for several years now and has shown herself capable of advancing written and oral submissions. At the conclusion of the review hearing she was afforded an opportunity to be heard in relation to the fixing of the sum, and she was granted liberty to apply to vary or revoke the order by which it was fixed. The grant of liberty to apply was a means by which Dr Lim could be given a further opportunity to address the issue. The liberty was to be exercised within 14 days.

10    To the extent that Dr Lim complains that she was not afforded sufficient time to exercise the liberty to apply, I reject the submission. The time granted to exercise the liberty to apply fairly reflected the limited nature of the issue. Among other things, Dr Lim had previously complained that she was unwell and should have some weeks to prepare materials in relation to the matter. On the material before me I do not accept that Dr Lim is incapacitated in a way that prevents her from making submissions in relation to the limited question.

11    I have not overlooked that Dr Lim asked for more time to exercise the liberty to apply. A medical certificate upon which she relied for that purpose is of little evidentiary value because it does not disclose whether the practitioner was aware of the nature of the work to be undertaken in challenging the order, nor aware of the articulate manner in which Dr Lim has continued to put forward written submissions and arguments in her correspondence to the Court. Dr Lim asked for more time for the additional reason that she was attempting to seek legal representation. I took the view that Dr Lim has had some years to obtain legal assistance in respect of substantive matters and questions relating to costs and I refused to grant her further time for that reason. It is in the interests of justice that the remnant issues in this action be resolved expeditiously.

12    Dr Lim’s arguments otherwise complain of the outcome of the review of the Registrar’s decision, both as to the merits of the Court’s own decision and matters going to its power to make the orders that it did. She complains of confusing advice she received from the Registry in connection with the correct procedure she should have adopted to challenge the Registrar’s decision. However, Dr Lim has not been granted liberty to apply to vary the sum fixed in order [2] made on 17 March 2025 (as later varied). To the extent that Dr Lim submits that the order in [2] is affected by appealable error, she was granted an extension of time in which to seek leave to appeal (if leave be required) or to appeal from that judgment, so that time was to run from the date upon which she received the written reasons in Lim 3. The material contained in Dr Lim’s submissions and affidavits are focussed principally on the issues already decided in Lim 2 and Lim 3 and do not otherwise provide a sufficient basis to disturb the order presently under consideration.

13    In ordering Dr Lim to pay costs reflecting the outcome of the review, I have had regard to the source of the Court’s power to make the original costs order following the dismissal of her originating application. The original costs order was made on the basis that the conditions for exercising the power under s 570 of the FW Act were fulfilled, as explained in Lim 2. I have proceeded on the basis that the Court may impose liabilities for costs against a litigant that are consequential and ancillary to an original costs made under s 570 of the FW Act, so that the respondents’ benefit of the original order is not undermined or diminished by unsuccessful challenges to the quantum (whether in a taxation context or in the exercise of the Court’s power to fix costs in a lump sum). In my view, the power to impose costs liabilities arising out of challenges to costs assessments arises by necessary implication under s 570 of the FW Act provided that the conditions for imposing the primary liability for costs are fulfilled, as they were in the present case.

14    There will be an order dismissing Dr Lim’s application to vary the order requiring her to pay to the respondents the additional sum of $1,750.00.

Associate:

Dated:    16 April 2025

SCHEDULE OF PARTIES