Re Bret Busby v the Chief Manager, Human Resources Department, Australian Telecommunications Commission; Kevan William Ross; Patrick Joseph Riley; Leonard Peter Anderson and William Michael Strong, the State Manager, Australian Telecommunications Commi [1992] FCA 60 (25 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: BRET BUSBY
And: THE CHIEF MANAGER, HUMAN RESOURCES DEPARTMENT, AUSTRALIAN
TELECOMMUNICATIONS COMMISSION; KEVAN WILLIAM ROSS; PATRICK JOSEPH RILEY;
LEONARD PETER ANDERSON and WILLIAM MICHAEL STRONG, THE STATE MANAGER,
AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. WA G103 of 1986
FED No. 78
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Practice and Procedure - costs - delay in bringing in bill for taxation - delay of four years - result of oversight - no contumelious or intentional delay - party affected by costs order of limited means and marginal finances - four year delay - possibility of lost opportunity to arrange affairs to meet costs order - additional stress associated with late revival of interest in costs order - permanent stay ordered.

Birkett v James (1978) AC 297

Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) ATPR (Digest) 46-021

Bomanite Pty Ltd v Slatex Corp. Aust. Pty Ltd (1991) 104 ALR 165

HEARING

PERTH
25:2:1992

Mr B. Busby appeared on his own behalf.

Counsel for the Respondent: Ms J. Adamson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The proceedings pursuant to the order for costs made on 4 February 1988 be stayed indefinitely.

Each party bear its own costs of the motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

On 20 October 1986, Bret Busby instituted proceedings in this Court against the Australian Telecommunications Commission ("the Commission") and certain of its officers seeking review of a decision to terminate his probationary employment with the Commission as a Clerk Class 1. The application proceeded to a hearing and on 16 December 1987 was dismissed and an order made giving liberty to apply on the question of costs. On 4 February 1988 an order was made that Mr Busby pay two thirds of the Commission's costs of the application. An appeal against the decision was dismissed in December 1988. In proceedings before Lee J. on 12 December 1991 related to the costs of the appeal, the question of the costs in the original proceedings was raised and counsel for the Commission then informed the Court that no action had been taken to have those costs taxed.

2. By a motion filed on 13 December 1991, Mr Busby moved for an order that the costs order made on 4 February 1988 "be of no effect". The motion was made returnable on 7 February. On 8 January the Commission filed a bill of costs for taxation claiming a total of $6,034 without any adjustment to reflect the fact that it was entitled to only two thirds of its total costs. Argument on the motion ensued on 7 February and it was adjourned to today to enable the Commission to file and serve written submissions by 20 February on the question whether a stay of proceedings should be ordered. On 20 February, the Commission's submissions were filed but not served on Mr Busby. When the matter came on for hearing today it was stood down for a time to enable him to consider the submissions and prepare a reply to them.

3. The Commission submits that the power to order a stay of proceedings is only available where there has been intentional or contumelious default by a party or delay such as to cause serious prejudice to another. There has been, it was said, no intentional or contumelious default in this case. The Commission said it did not seek to enforce the order initially because of Mr Busby's imminent appeal to the Full Federal Court. An order for costs in the appeal was not made until 18 December 1988. The delay in pursuing costs under the February 1988 order thereafter was due, it was said, to oversight caused by a number of different solicitors administering the file in the Perth office of the Australian Government Solicitor. This explanation did not square with that first given to this Court by counsel for the Commission that there was a deliberate decision not to enforce the order immediately because of Mr Busby's limited financial means. At the hearing on 25 February, counsel asserted that that was a factor in the initial decision not to pursue costs, which was later overtaken by oversight. According to the submission, instructions to pursue costs under the February 1988 order were obtained after it was discovered that they were still outstanding and after Mr Busby had agreed to pay costs of the appeal by instalments. It was submitted that the delay could not constitute an abuse of process of the Court and that such delay as had occurred had not caused him serious prejudice.

4. The Rules of Court contemplate the possibility of delay in the pursuit of costs in O.62 r.17 which provides:

"Where a party entitled to costs refuses or neglects to
bring in his costs for taxation or to procure them to
be taxed, the taxing officer may, so as to prevent
another party being prejudiced by the refusal or neglect-
(a) certify the costs of the other party and
the refusal or neglect; or
(b) allow a nominal or other sum to the party
refusing or neglecting to bring in his costs."

In order that the taxing officer might exercise power under this rule, he must be appraised in some way of the fact that a costs order has been made, that a bill of costs has not been brought in and that there is the possibility of prejudice to the party against whom the costs were ordered. That requires, in my opinion, some motion on the part of the party claiming prejudice. No such motion was initiated in this case which is perhaps not surprising as Mr Busby has represented himself at all times in this Court.

5. Order 62 r.18 provides that:

"Where in a proceeding before the taxing officer a
party is guilty of neglect or delay or puts another
party to any unnecessary or improper expense the
taxing officer may exercise the powers vested in him
by the preceding rule."

That rule deals with a situation which arises after proceedings before the taxing officer have been commenced and does not apply to delay prior to the lodgment of the bill of costs.

6. Under O.37 r.10 and in the exercise of its implied incidental power, the Court may order a stay of proceedings where there has been a delay which is intentional and contumelious or which gives rise to serious prejudice to the innocent party - Birkett v James (1978) AC 297 at 318 (Lord Diplock); Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) ATPR (Digest) 46-021. In the present case, the delay in bringing in a bill of costs for taxation has been considerable, a period of some four years since the order was made, although no doubt it can be said that it was open to the Commission and appropriate for it not to bring in the bill until the hearing and disposition of the appeal, which was dismissed in December 1988. The case is not one in which there is any evidence of contumelious or intentional default on the part of the Commission. The causes of the delay appear substantially to have been oversight.

7. On the question of prejudice, Mr Busby gave oral evidence that he had had intermittent employment over the past four years and that had he known that the costs of the application were to be pursued, he may have taken steps to so arrange his affairs as to make instalment payments for any costs taxed. I have no doubt from his evidence that his finances have, at all times, been marginal and his employment episodic. In order to facilitate his ability to seek employment he has undertaken the purchase of a motor vehicle for some $1,550 payable in instalments of about $200 per month. To finance that purchase he has had to trade upon the goodwill of his landlord and defer rental repayments to the point where they are now 5 or 6 weeks in arrears. While continuing to seek employment he is enrolled as a student at university with a view to obtaining qualifications that would increase his employability in areas related to laboratory or associated work.

8. It is right to say that the burden of showing prejudice justifying a stay rests upon Mr Busby. And one can speculate that his finances have been so precarious that the delay in payment of the costs has done little more than benefit him. On the other hand, honest people often arrange their affairs as best they can in order to deal with their liabilities and it is reasonable to assume that Mr Busby would have arranged his affairs to deal as best he could with the impact of these costs had they been pursued with anything like reasonable vigour. The length of the delay and the marginal nature of his finances, lead me to conclude that if required to pay now he would suffer prejudice which is not to be dismissed by simply saying that he has not had to pay the money earlier. I do not know how or whether he could have done anything to meet or compromise the costs ordered had they been pursued earlier, but he has been deprived of any such opportunity and has undoubtedly operated in the last few years on the assumption that these costs would not be pursued.

9. Apart from the lost opportunity, the psychological stress on an individual of marginal means associated with the late revival of interest in this costs order is not to be discounted. Non-compensible inconvenience and stress on individuals are significant elements of modern litigation - Bomanite Pty Ltd v Slatex Corp. Aust. Pty Ltd (1991) 104 ALR 165 at 177. While it may be that, measured by reference to external criteria, the prejudice to the applicant is minor it nevertheless is, in my opinion, serious having regard to his own circumstances. On the other hand the damage to the respondent's interests arising from a stay on the costs order is minor having regard to the amount in issue. In the circumstances I propose to order that the proceedings be stayed indefinitely.