Balbir Singh v The Australian New Zealand College of Anaesthetists (No 2)
[2025] FedCFamC2G 1172
•25 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Balbir Singh v The Australian New Zealand College of Anaesthetists (No 2) [2025] FedCFamC2G 1172
File number(s): PEG 66 of 2022 Judgment of: JUDGE LUCEV Date of judgment: 25 July 2025 Catchwords: COSTS – Human rights proceedings – whether amendment prohibiting payments of costs except where proceedings instituted without reasonable cause applied where proceedings instituted prior to effective date of amendment – power to award costs generally – where statutory prohibition on proceedings in this Court – where extension of time application dismissed because of the statutory prohibition – costs claimed on scale – whether impecuniosity a basis not to award costs – whether proceedings instituted without reasonable cause – appropriate to award costs and disbursements as claimed
WORDS AND PHRASES – “without reasonable cause”
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 46PSA
Australian Human Rights Commission Amendment (Costs Protection) Act 2024 (Cth) s 7
Disability Discrimination Act 1992 (Cth) s 13
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214
Racial Discrimination Act 1975 (Cth) s 6A
Sex Discrimination Act 1984 (Cth) s 10
Federal Circuit andFamily Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 22.09, Sch 2
Cases cited: Balbir Singh v Australian New Zealand College of Anaesthetists [2025] FedCFamC2G 563
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172
Graham v Minister for Immigration and Border Protection (No 2) [2018] FCA 1116
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164; (2019) 93 ALJR 959; (2019) 372 ALR 117
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; (1998) 72 ALJR 578; (1998) 96 LGERA 173; (1998) 152 ALR 83
Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh [2004] FCAFC 155
Thompson v Hodder [1989] FCA 493; (1989) 21 FCR 467; (1989) 29 IR 339; (1989) 32 AILR 6
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of last submission/s: 7 July 2025 Date of hearing: Written submissions only Place Perth Solicitor for the Applicant: The Applicant was self-represented Solicitor for the Respondent: Russell Kennedy Lawyers ORDERS
PEG 66 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASBIR BALBIR SINGH
Applicant
AND: THE AUSTRALIAN NEW ZEALAND COLLEGE OF ANAESTHETISTS
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
25 JULY 2025
THE COURT ORDERS THAT:
1.The applicant pay the respondent:
(a)costs in the sum of $13,522.23; and
(b)disbursements in the sum of $12,522.73,
by 31 August 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
In Balbir Singh v Australian New Zealand College of Anaesthetists [2025] FedCFamC2G 563 (“ANZCA (No 1)”), the applicant’s application for an extension of time to file human rights proceedings under the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) in this Court was dismissed on the basis that under s 13(4) of the Disability Discrimination Act 1992 (Cth), s 6A(2) of the Racial Discrimination Act 1975 (Cth), and s 10(4) of the Sex Discrimination Act 1984 (Cth), the proposed application was statutorily prohibited from being made because there had been a previous application made to the Victorian Civil and Administrative Tribunal (“VCAT”) in respect of a like matter under Victorian equal opportunity legislation. An order was also made that costs, if not agreed within 14 days, be the subject of a directions hearing.
There was no agreement on the amount of costs, and pursuant to orders made by the Court on 9 June 2025:
(a)outlines of submissions were filed by the applicant, Dr Balbir Singh, and the respondent, The Australian New Zealand College of Anaesthetists (“ANZCA”);
(b)an affidavit of Benjamin Jeffry Lloyd (“Mr Lloyd’s Affidavit”), a lawyer from the firm acting for ANZCA, was also filed; and
(c)the matter was to be determined on the papers.
APPLICABLE LAW
ANZCA’s submissions refer to s 46PSA of the AHRC Act as amended by the Australian Human Rights Commission Amendment (Costs Protection) Act 2024 (Cth) (“AHRC Amendment Act”) in relation to costs for human rights matters. Section 46PSA of the AHRC Act as so amended does not, however, apply to any applications made under s 46PO(1) of the AHRCAct before the commencement date of the AHRC Amendment Act, which was 2 October 2024: AHRCAmendment Act, s 7(2). Dr Balbir Singh’s originating application was filed on 12 January 2022 and precedes the amendment. As such s 46PSA of the AHRC Act is not applicable in these proceedings.
The Court has power to award costs as set out in s 214(2) and (3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth):
(2)The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.
…
The Court thus has a general discretion to award costs, subject to any modification of that jurisdiction by particular legislation: Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172 (“Gehlert”) at [24] per Mortimer CJ, Colvin and Dowling JJ.
Rule 22.09 of the Federal Circuit andFamily Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) states that:
Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:
(a) costs in accordance with Schedule 2; and
(b) disbursements properly incurred.
…
In Gehlert at [41]-[42] per Mortimer CJ, Colvin and Dowling JJ the Full Court of the Federal Court observed in relation to r 22.09 of the GFL Rules that:
41.By providing that the rule operates unless the Court “otherwise orders”, r 22.09 is recognising that the assessment of costs by reference to Sch 2 and the disbursements properly incurred is to be undertaken subject to the terms of any different orders as to costs. So, as has been mentioned, those orders may set the amount of costs. They may cap the amount of costs that may be recovered. They may provide that a particular disbursement is or is not to be recovered. In making those orders, the Court acts according to the justice of an individual case, and exercises a broad discretion about the fair and just amount of costs that may be recovered by a party who has been determined to be entitled to a costs order, depending on the facts before the Court.
42.Otherwise, r 22.09 splits a party’s entitlement into two categories — “costs” linked to Sch 2, and “disbursements”.
Thus, unless the Court otherwise orders, costs are to be calculated by reference to the scale set out in Sch 2 of the GFL Rules (“Scale”) wherein Pt 1 of the Scale applies to general federal law proceedings, and thus to these proceedings.
COSTS CLAIMED
The total costs invoiced to ANZCA in respect of legal fees in these proceedings is $60,525.23 comprising $48,002.50 for professional fees and $12,522.73 for counsel’s fees: Mr Lloyd’s Affidavit at [4].
The costs claimed by ANZCA in these proceedings are costs according to Scale in the amount of $26,044.95 calculated as follows:
Item
Amount
Description
2
$3,354.70
Initiating or opposing an application which includes interim orders (other than procedural orders) up to the completion of the first court date.
2(b) (and Item 9(b) hearing fee)
$1,255.75
Daily hearing fee for a 1/2 day hearing.
5
$7,543.02
Preparation for a final hearing - one day matter.
8(a)
$342.19
Final hearing costs for attendance of solicitor at hearing to take judgment and explain orders (17 April 2025).
8(b) (and
item 9(a) hearing fee)
$342.19
Daily hearing fee for short mention (judgement) (17 April 2025).
10 (50% of
item 9(a))
$171.09
Advocacy loading on item on solicitor appearing to receive judgment and making costs application.
8(b)
$342.19
Daily hearing fee for short mention (costs directions hearing 9 June 2025).
10 (50% of
item 9(a))
$171.09
Advocacy loading on item on receiving judgment and making costs application (costs directions hearing 9 June 2025).
Subtotal
$13, 522.23
Professional fees
11
$12,522.73
Plus Disbursements - counsel fees
Total
$26,044.95
SUBMISSIONS
It is unnecessary to set out the parties’ submissions in detail. It suffices to summarise them as follows:
(a)ANZCA submitted as follows:
(i)Dr Balbir Singh instituted proceedings without reasonable cause, and in those circumstances it is appropriate for the Court to order that she pay ANZCA’s costs;
(ii)in the course of defending the extension of time application, and to the date of swearing of Mr Lloyd’s Affidavit, ANZCA has been invoiced for a total of $60,525.23 (comprised of $48,002.50 for professional fees and $12,522.73 for counsel’s fees);
(iii)setting the costs based on the Scale is the most appropriate and convenient means of dealing with the questions of costs because of the stage-based events set out in the Scale; and
(iv)the total costs calculated according to the Scale is $26,044.95; and
(b)in Dr Balbir Singh’s submissions it was implicit that she submitted that there be no order as to costs. Otherwise, Dr Balbir Singh submitted that:
(i)she should not be “faulted for sexual violation/harassment/abuse or any bullying/discrimination” and that it is “not justified to racist victim shame” her;
(ii)ANZCA members have been proven to have allowed un-consented communications resulting in the cause and aggravation of some of her injuries and so she should not be forced to pay ANZCA’s legal fees;
(iii)there is a significant imbalance of power in all her legal cases against ANZCA;
(iv)there were seven lawyers involved in the case for ANZCA and ANZCA did not require seven experienced expensive lawyers to be involved in the case;
(v)“with all the work already done in the past, by ANZCA’s lawyers” she does not believe they have to do any extensive new fresh work at all;
(vi)funds taken from her are being used to “aid all of the proven instigators/perpetrators of serious harm against me”, namely economic oppression to aggravate her injuries;
(vii)it is proven that all of her injuries were caused by the wrongful conduct of others against her; and
(viii)she had done nothing wrong and as such she should not be persecuted and forced to pay ANZCA’s legal costs.
CONSIDERATION
Generally speaking, costs follow the event, meaning that a successful party is generally entitled to an award of costs in their favour. As was observed in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; (1998) 72 ALJR 578; (1998) 96 LGERA 173; (1998) 152 ALR 83 at [66]-[67] per McHugh J (footnotes omitted):
66.By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs. As Devlin J said in Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co [No 2], when setting aside an arbitrator's costs award:
“the arbitrator is not directing his mind to one of the most, if not the most, important of the elements which ought to affect his discretion, namely the result of the case. Prima facie, a successful party is entitled to his costs. To deprive him of his costs or to require him to pay a part of the costs of the other side is an exceptional measure.”
The combined force of the sentiments recognised above by Mason CJ, regarding the need for consistency in order to avoid injustice, and by Devlin J, regarding the most significant factor affecting the costs discretion, provides the jurisprudential basis for the important principle commonly referred to as the “usual order as to costs”.
The usual order as to costs
67.The expression the “usual order as to costs” embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
Indubitably ANZCA were successful in these proceedings which were dismissed because, as set out in ANZCA (No 1) at [101] per Judge Lucev:
The VCAT Application (including the VCAT Points of Claim) was made in respect of the same organisations and the same complaints as made in the Proposed Application, and that those complaints are ones in respect of which the provisions of the RD Act, SD Act and DD Act apply, establishes that Dr Balbir Singh would have been entitled to make an application to this Court under the various provisions of the RD Act, SD Act and DD Act in respect of those same complaints (and as she endeavours to do in the Proposed Application). Consequently, under ss 6A(2)(b) of the RD Act, 10(4)(b) of the SD Act, and s 13(4) of the DD Act there is a statutory prohibition on the making of the Proposed Application. It follows from that prohibition that the Proposed Application has no prospect of success, and it would be futile to extend time to allow it to be made: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J. It further follows that the Extension of Time Application must therefore be refused.
Further, absent the statutory prohibition referred to, the Court would have refused to grant the extension of time sought by Dr Balbir Singh in circumstances where each of the factors for consideration of an extension of time weighed against the grant of an extension of time: ANZCA (No 1) at [105] per Judge Lucev. Finally, and in any event, the Court would not have granted leave under s 46PO(3A) of the AHRC Act to file the proposed application even if an extension of time were not required: ANZCA (No 1) at [111] per Judge Lucev. Put shortly, these proceedings ought never to have been brought in this Court because similar proceedings had already been brought before VCAT. In those circumstances, ANZCA is entitled to claim and recover its costs of this litigation being brought by Dr Balbir Singh.
Dr Balbir Singh’s argument that the case did not require “7 experienced expensive lawyers to be involved” is beside the point in circumstances where costs are sought according to the Scale. The Scale does not award costs on the basis of work performed by individual lawyers in the proceedings, save arguably for counsel’s fees which are treated as a disbursement. Thus, and subject to counsel’s fees, it does not matter whether one lawyer or 50 lawyers were involved where costs are claimed and awarded on the Scale. Further, Dr Balbir Singh’s argument that because the matter had been dismissed by VCAT there was no additional expense to be incurred in these proceedings is wrong and fails to recognise the different nature of these proceedings to those before VCAT. VCAT dealt with the merits of the allegations made in the context of a summary dismissal application, and summarily dismissed the application before VCAT. In these proceedings, dismissal was sought because of the statutory prohibition, and also because the proposed application was out of time. Even treating the statutory prohibition as part of the possible merits of the case in assessing an extension of time does not assist Dr Balbir Singh because the statutory prohibition had the effect of precluding the proceedings from being brought at all, and therefore, strictly speaking, it was unnecessary to address the extension of time application, including within it the arguable merits of the case. Thus, the VCAT litigation and these proceedings turned upon different issues, and the work performed by lawyers in respect of the VCAT litigation is not the same work as performed by lawyers in respect of these proceedings.
This matter therefore fell to be determined on a very narrow basis, and Dr Balbir Singh’s referral to broad ranging allegations of injury arising from her previous employment both in Australia and New Zealand, the circumstances in which she alleges she incurred those injuries, and her allegation (not proven in these proceedings or before VCAT) that ANZCA members were involved in various employment, victims of crimes and human rights violation cases that she has instigated, and the outcomes of proceedings under accident compensation legislation in New Zealand, are irrelevant to this litigation and the costs associated therewith.
Dr Balbir Singh asserts that she has no capacity to pay any costs which might be awarded. In that regard the Court notes that the High Court has observed that “… the courts have consistently rejected the suggestion that a costs order should not be made against an impecunious party because it would be futile to do so” and “[t]he very existence of the debt created by the order is a benefit to a creditor”, and that “[T]hat consideration [impecuniosity] was not relevant to the proper exercise of the Court’s discretion as to costs”: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164; (2019) 93 ALJR 959; (2019) 372 ALR 117 at [35] and [36] per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ. In Graham v Minister for Immigration and Border Protection (No 2) [2018] FCA 1116 at [16] per Tracey J the Federal Court found that “futility is not a basis to refuse costs”. Dr Balbir Singh’s asserted impecuniosity is therefore not a sufficient basis to deprive ANZCA of an order for costs.
In all the circumstances, the Court is satisfied that it is appropriate that Dr Balbir Singh pay ANZCA’s costs and disbursements as claimed.
For the sake of completeness the Court notes that even if, contrary to what the Court has found at [3] above, s 46PSA of the AHRC Act does apply to these proceedings following the proclamation of the AHRC Amendment Act, the outcome would be the same, as for the reasons set out at [13]-[14] above referring to ANZCA (No 1) the proceedings were instituted “without reasonable cause”: AHRC Act, s 46PSA(6)(a). Proceedings are instituted without reasonable cause where, as here, they were bound to fail: Thompson v Hodder [1989] FCA 493; (1989) 21 FCR 467; (1989) 29 IR 339; (1989) 32 AILR 6; FCR at 470 per Keely, Gray and Ryan JJ; Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh [2004] FCAFC 155 at [14] per Wilcox, Marshall and Jacobson JJ.
CONCLUSION
The Court has concluded that Dr Balbir Singh must pay ANZCA’s:
(a)costs in the sum of $13,522.23; and
(b)disbursements in the sum of $12,522.73.
There will be an order accordingly.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 25 July 2025
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