Clarke v Superannuation Complaints Tribunal [2020] FCA 1853

Federal Court of Australia

Clarke v Superannuation Complaints Tribunal [2020] FCA 1853 File number: VID 388 of 2020

Judgment of: BROMBERG J

Date of judgment: 18 December 2020

Catchwords: COSTS – where proceeding settled on all issues other than costs – application of rule in Lai Qin – whether appellant's conduct so unreasonable that second respondent should have costs – application dismissed with no order as to costs.

Cases cited: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 10

Date of hearing: 18 December 2020

Place: Melbourne

Solicitor for the Appellant: Ms J Merkel as town agent for Elizabeth Fleming & Associates

Counsel for the First Respondent: The First Respondent filed a submitting notice

Solicitor for the Second Respondent: Mr J Statham of Elringtons

ORDERS VID 388 of 2020

BETWEEN: TRACEY ANN CLARKE Appellant

AND: SUPERANNUATION COMPLAINTS TRIBUNAL First Respondent

KARLY WRIGHT Second Respondent

KYLE JAMES KELLY (A MINOR) (and another named in the Schedule) Third Respondent

order made by: BROMBERG J DATE OF ORDER: 18 DECEMBER 2020

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J: 1 This proceeding concerns an appeal from a decision of the Superannuation Complaints Tribunal given on 14 May 2020. By an interlocutory application of 4 November 2020, the second respondent seeks an order that the proceeding be dismissed for want of prosecution or alternatively that it be dismissed by way of summary judgment. The appellant resists that application. The first respondent was not actively involved having filed a submitting appearance. It is not necessary to set out the nature of the proceeding in any further detail. 2 It appears, and it is accepted by the appellant and the second respondent, that agreement was reached between them that the proceeding should be dismissed. That agreement seems to have been enlivened in late September 2020, upon a condition relating to the results of a paternity test having become available at about that time. 3 The settlement of the proceeding did not involve a settlement on the question of the costs of the proceeding. It appears on the material before me, most of which is in the affidavit in support of the interlocutory application but some of which was given as uncontested facts from the bar table, that the parties have been in dispute since about 2 October 2020 as to which of them should pay the costs of the proceeding. There appears to have been in the order of about two months in which the appellant may be regarded as having been largely unresponsive to attempts made by the second respondent to resolve the issue of costs, but after the interlocutory application was filed on 4 November 2020, the material indicates that at least some communications occurred between the parties in an effort to resolve the question of costs. Unfortunately, that issue was left unresolved. 4 When the matter came on before me this morning, I raised with the parties the manner in which the application should be dealt with. It appeared to me that in circumstances where both parties agreed that an order for the proceeding to be dismissed should be made, it was unnecessary for the Court to determine whether such an order was justified by any failure of the appellant to prosecute the appeal. On the basis that I should make an order dismissing the appeal, I sought submissions from the parties on the question of whether any order should be made as to costs, and, if so, the basis upon which any such order should be made. 5 The second respondent sought her costs to 28 October 2020 on a party-party basis and her costs thereafter on an indemnity basis. The appellant resisted any adverse order as to costs and submitted that no order as to costs ought to be made. The appellant submitted that the applicable principle in determining the question of costs was that propounded by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625. Dealing with a situation where a proceeding had been settled, but the question of costs remained in dispute, his Honour said this: The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. ... Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. 6 The second respondent did not really contest the applicability of the principle in Lai Qin. In any event, I consider that it is the principle that should be applied in the circumstances at hand where, as I have accepted, the proceeding was settled and the only question remaining is whether an order for costs ought to be made. The principle in Lai Qin provides that, ordinarily, the Court should make no order as to costs in circumstances where the proceeding has been settled on all issues other than costs. There are two possible exceptions recognised by the principle, although the width of the Court's discretion would suggest that those exceptions are not necessarily exhaustive. The first is where one of the parties has acted so unreasonably that the other party should obtain the costs of the action. The second is where one party would almost certainly have succeeded if the matter had been fully tried. 7 I am not in a position to conclude that the second respondent was almost certain to have succeeded if the matter had been fully tried. No real attempt was made by the second respondent to so persuade me and nor would that task have been available to be performed on the basis of the limited nature of the evidence before me. The second respondent did, however, contend that the appellant had conducted herself unreasonably, and that the second respondent should be entitled to costs on that basis. That contention was essentially limited to a submission that there had been no response or an insufficient response from the appellant on the question of the disputed costs since 28 October 2020. There is, perhaps, some basis for criticism of the appellant. On the material before me, it does seem that the appellant was slow to respond to attempts made to resolve the costs dispute from late September of 2020 when it may be said that the agreement of the parties to dismiss the proceeding had crystallised. 8 However, I am not satisfied that that conduct has been shown to be unreasonable. The material before me does not go so far as to demonstrate unreasonable conduct although, as I have said, there is probably some substance in the complaint made by the second respondent that it was only after the interlocutory application was filed that any response from the second respondent was provided on the question of costs. 9 I may have been more receptive to the second respondent's position if not for the fact that there is room for criticism of the interlocutory application that was made by the second respondent to which the appellant has had to respond and no doubt incurred costs in so doing. On the material before me, it does appear to me that that application was somewhat misconceived, and would likely have failed on the question of whether there was a failure to prosecute the appeal in circumstances where a live question remained in the appeal – that being the question of who should pay the costs of it. 10 In those circumstances, the appropriate orders that the Court should make are that the appeal be dismissed and that there be no order as to costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg.