Jadwan Pty Ltd v Rae & Partners (A Firm) (No 7)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 04 October 2022
• Neutral Citation: [2022] FCA 1174
• Date: 04 October 2022

Federal Court of Australia

Jadwan Pty Ltd v Rae & Partners (A Firm) (No 7) [2022] FCA 1174

File number(s):	TAD 28 of 2018
Judgment of:	O'CALLAGHAN J
Date of judgment:	4 October 2022
Catchwords:	COSTS – where Full Court ordered that appellant pay respondents’ costs of the appeal to be assessed in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth) – where a Registrar of the Court ordered to determine lump sum amount – application for review of Registrar’s order
Legislation:	Federal Court of Australia Act 1976 (Cth) s 4 Judiciary Act 1903 (Cth) ss 55A, 55B, 55C, 86(1)(ga) Federal Court Rules 2011 (Cth) rr 40.02, 40.02(b), 40.18, 40.29, Sch 3 items 1, 1.2, 1.3, 3.1, 4.1, 5, 6, 7, 8, 11.1(i)
Cases cited:	Bechara v Bates (2021) 286 FCR 166 Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640 Harrison v Schipp (2002) 54 NSWLR 738 Innes v AAL Aviation Ltd (No 2) [2018] FCAFC 130 Jadwan Pty Ltd v Rae & Partners (A Firm) (2020) 278 FCR 1 Jadwan Pty Ltd v Rae & Partners (A Firm) (No 2) [2020] FCAFC 95 Oil Basins Ltd v Watson (2017) 252 FCR 420 University of Western Australia v Gray (No 25) (2009) 180 FCR 483
Division:	General Division
Registry:	Tasmania
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	41
Date of hearing:	21 September 2022
Counsel for the Appellant:	Mr AMJ Meagher
Solicitor for the Appellant:	Keypoint Law
Counsel for the First, Second and Third Respondents:	Mr AB Walker
Solicitor for the First, Second and Third Respondents:	Tremayne Fay and Rheinberger
Counsel for the Fourth and Fifth Respondents:	The Fourth and Fifth Respondents did not appear

ORDERS

		TAD 28 of 2018
BETWEEN:	JADWAN PTY LTD Appellant
AND:	RAE & PARTNERS (A FIRM) First Respondent ; WILSON DOWD (A FIRM) Second Respondent ; TOOMEY MANING & CO (A FIRM) (and others named in the Schedule) Third Respondent

order made by:	O'CALLAGHAN J
DATE OF ORDER:	4 OCTOBER 2022

THE COURT ORDERS THAT:

1. Costs be awarded to the first, second and third respondents in a lump sum in the amount of $119,102.63.

2. The appellant pay to the first, second and third respondents costs of $119,102.63.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1. By way of interlocutory application dated 2 September 2021, the appellant seeks to review an order made by a registrar of this court dated 12 August 2021 in which she ordered that it pay to the first, second and third respondents (the respondents) the sum of $104,541.57 in respect of their costs of the appeal, assessed on a lump sum basis. The respondents had originally sought a total amount of $139,703.90, comprised of professional costs of $13,088.90 (inclusive of GST) and disbursements of $126,615 (inclusive of GST).

2. At the hearing of this application, the respondents accepted (as they accepted before the learned registrar) that they were not entitled to claim any amount by way of GST, and that they were also not entitled to claim a filing fee of $445 in respect of the bill of costs dated 10 February 2021 upon which they rely (the bill of costs). It follows that at the hearing, the disbursements claimed were made up entirely of counsel’s fees.

3. Accordingly, the amounts of solicitors’ and barristers’ fees sought as a lump sum were $11,899 and $114,700, respectively.

The background

4. Before turning to conduct the review of the decision of the registrar, it is necessary that I should say a little about the background of the proceeding.

5. The (unsuccessful) appeal brought by the appellants in respect of which the lump sum costs are claimed by the respondents was, on any view of the matter, both factually and legally very complex.

6. As the headnote to the authorised report correctly recorded (see Jadwan Pty Ltd v Rae & Partners (A Firm) (2020) 278 FCR 1 (Bromwich, O’Callaghan and Wheelahan JJ)), the case involved the following issues:

The appellant was a nursing home operator which sought damages against its former lawyers for alleged professional negligence arising out of the revocation of its approval, under the National Health Act 1953 (Cth) as a Commonwealth funded nursing home, by a delegate of the Minister for Health and Family Services. In particular, the appellant claimed that: (i) reasonable advice from its lawyers required that its attention should have been directed to the operation of new legislation relevant to its operation; (ii) if the appellant had received such advice, it would have instructed the lawyers to seek relevant interlocutory relief; (iii) such application would have been successful, and (iv) it would consequently have become an approved provider under the new legislation. The appellant further claimed that its lawyers’ breaches of duty caused damage to its economic interests, namely a lost opportunity to continue to conduct its nursing home business at a new premises or alternatively to sell its approvals.

7. The reasons for decision alone comprise over 170 pages of the authorised report.

8. In written submissions filed on behalf of the respondents, the complexity of the proceeding was correctly described in these terms:

The claim that was made and maintained throughout the trial of the action was for damages of between $10 to $16 million … The claim in respect of the value of the bed licences was one made very late in the day in the alternative to the primary claim for damages.

… The original action was commenced in 2004. There were five respondents. The court book and other documents exceeded 8000 pages. The legislation concerning the operation of nursing homes at various times was required to be considered. The trial lasted for 4 weeks and oral closing submissions were heard over 2 days. The transcript ran to 1184 pages. The judgment ran to 742 paragraphs and over 200 pages. The appeal consisted of 22 grounds and was heard over [four] days. Orders were made permitting the appellant and respondents to file submissions up to 50 pages. The appeal was a rehearing requiring the parties [to] traverse numerous and complex facts …

9. In separate reasons, the Full Court ordered as follows (see Jadwan Pty Ltd v Rae & Partners (A Firm) (No 2) [2020] FCAFC 95 (Bromwich, O’Callaghan and Wheelahan JJ)):

1. The appellant pay the respondents’ costs of the appeal to be assessed in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).

2. It is directed that a Registrar of the Court is to determine the amount of the respondents’ costs in such manner as the Registrar deems fit, and shall then make an order fixing the amount of those costs, which are to be payable within 28 days of such orders.

10. As I have already said, a registrar determined the amount of the respondents’ costs in the sum of $104,541.57 and it is in respect of that determination that the appellant now seeks judicial review. The review that I am to conduct is, of course, a de novo review. See generally Bechara v Bates (2021) 286 FCR 166 (Allsop CJ, Markovic and Colvin JJ).

Applicable principles

11. As the Full Court said in ...