Miller v Wertheim [2004] FCA 988

FEDERAL COURT OF AUSTRALIA

Miller v Wertheim [2004] FCA 988

PRACTICE & PROCEDURE – costs – bill of costs – taxation – judicial review of decision of taxing officer on reconsideration. Federal Court Rules, O 62, r 44

Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 followed. Cachia v Westpac Financial Services Ltd [2003] FCA 817 referred to. In the Marriage of Butler and Glendowan; re Bowdens' Bill of Costs (1980) 6 Fam LR 502 referred to. Sundell v Queensland Housing Commission (1954) 94 CLR 531 followed. ELIANA FREYDEL MILLER V PETER WERTHEIM AND STEPHEN ROTHMAN N 1464 OF 2001 BEAUMONT J 2 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1464 OF 2001

BETWEEN: ELIANA FREYDEL MILLER

APPLICANT

AND: PETER WERTHEIM AND STEPHEN ROTHMAN

RESPONDENTS

JUDGE: BEAUMONT J

DATE OF ORDER: 2 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The motion for review of the taxing officer's decision on reconsideration be dismissed. 2. The applicant pay the respondent's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1464 OF 2001

BETWEEN: ELIANA FREYDEL MILLER

APPLICANT

AND: PETER WERTHEIM AND STEPHEN ROTHMAN

RESPONDENTS

JUDGE: BEAUMONT J

DATE: 2 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

Beaumont J:

introduction 1 By a notice of motion filed on 24 March 2004, the applicant seeks review under O 62 r 44(1) of the Federal Court Rules of a decision made by a Deputy District Registrar of this Court (the 'Taxing Officer') on 4 March 2004. 2 The substantive proceeding concerned an action brought under the Racial Discrimination Act 1975, which was summarily dismissed by a Federal Magistrate. The applicant appealed that decision. On 27 May 2002, the Full Court granted leave to appeal, but dismissed the appeal with costs (see Miller v Wertheim [2002] FCAFC 156). 3 On 21 May 2003, the respondents filed a Bill of Costs ('the Bill'). On 5 August 2003, the Taxing Officer provided an estimate of $8,150.00 for the Bill, if it were to be taxed. The applicant objected to the estimate and the matter proceeded to taxation on 10 November 2003, where the Bill was taxed at $11,530.53. The total Bill, however, was $12,231.53, which included the $546.00 taxing fee and $155.00 cost of attendance, as the applicant had failed to obtain a variation in her favour of greater than 15 per cent (pursuant to O 62 r 46(4A)). 4 The applicant again objected to the Bill and applied to have the matter reconsidered. 5 On 4 March 2004, the Taxing Officer provided his reasons for decision on reconsideration. The practical effect of that decision was that a reduction of $459.03 was made from amounts previously allowed on the taxation, and the sum of $155 was awarded to the respondent in relation to the costs of the reconsideration. Accordingly, the Certificate of Taxation issued on 4 March 2004 for $11,927.50.