AB v State of New South Wales (No.2)

[2005] FMCA 1624

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AB v STATE OF NEW SOUTH WALES (No.2) [2005] FMCA 1624

HUMAN RIGHTS – Indirect racial discrimination in education.

COSTS – Successful respondent not entitled to costs where unsuccessful applicant seeking to enforce a perceived right to access a public educational institution, where the proceedings involved an element of public interest and where the applicant failed only upon an issue of evidence.

Minns v New South Wales (No 2) [2002] FMCA 197
Physical Disability Council of NSW v Sydney City Council [1999] FCA 81
Xiros v Fortis Life Assurance [2001] FMCA 15

Applicant: AB

Respondent: STATE OF NEW SOUTH WALES   

File Number: SYG 1031 of 2004

Judgment of: Driver FM

Hearing date: 8 September 2005

Delivered at: Sydney

Delivered on: 8 September 2005

REPRESENTATION

Counsel for the Applicant: Mr Robertson, pro bono publico

Solicitors for the Applicant: Henry Davis York

Counsel for the Respondent: Ms Barbaro

Solicitors for the Respondent: NSW Crown Solicitors Office

ORDERS

1. There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1031 of 2004

AB

Applicant

And

STATE OF NEW SOUTH WALES  

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. There is before me in this matter an unresolved issue of costs.  In the principal proceedings in which I have just delivered judgment I said that I would hear the parties as to costs.  The respondent seeks an order for costs.  The applicant seeks that there be no order as to costs.

2. The circumstances are that the applicant was seeking entry to a New South Wales selective high school.  The applicant asserted indirect racial discrimination on the basis of national origin. 

3. The argument in favour of an award of costs against the unsuccessful applicant is that overall the applicant was not successful. The application has been dismissed.  Ordinarily, in such circumstances costs follow the event and ordinarily costs fall to be assessed in a party and party basis.  There is, however, no hard and fast rule.  A successful party has no entitlement to an order for costs.  It is a matter of discretion.  That discretion must be exercised judicially.

4. An argument against an order for costs is that the applicant was partially successful in that of the four elements necessary to establish indirect racial discrimination identified by me in paragraph 39 of my principal judgment, the applicant satisfied the first three and failed on the fourth only on the basis that there was insufficient evidence available.

5. I also note that the applicant was represented pro bono publico by Mr Robertson.  It is appropriate that the Court should place on record its gratitude to counsel for his willingness to appear on that basis.  Counsel only agrees to appear pro bono publico where an element of public interest is discerned.  As I said in Xiros v Fortis Life Assurance[1], there is always an element of public interest in human right proceedings, given that the legislation is beneficial and seeking to redress the public mischief of discrimination.

   [1] [2001] FMCA 15 at [24]

6. However, ordinarily in human rights proceedings a claimant is exercising a private right to claim damages.  There will frequently be an insufficient public interest element to outweigh the general principle that costs should follow the event in such proceedings[2].  I was also taken by Ms Barbaro to a decision of Federal Magistrate Raphael in Minns v New South Wales (No 2)[3] where His Honour said, at paragraph 13, that something more than precedent value is required in order to establish an element of public interest sufficient to warrant a departure from the ordinary principle that costs follow the event.

   [2] see Physical Disability Council of NSW v Sydney City Council [1999] FCA 815

   [3] [2002] FMCA 197

7. In this case, in my view, a combination of the public interest inherent in a case which is relatively novel and which counsel recognised by appearing pro bono publico, the fact that there was no claim for damages but simply the seeking of a right of access to a public school (which raised an issue of public importance) and the fact that but for the issue of evidence the applicant would have succeeded, all lead me to the view that there should be no order as to costs. 

8. Rather than make no order, I will order that there be no order as to costs, so that if the respondent is dissatisfied, the issue can be taken further on appeal.

9. I will order that there be no order as to costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  9 November 2005