Brown v State of New South Wales (Department of Education and Communities) (No 2)

[2015] NSWIC 1

Industrial Court

New South Wales

Medium Neutral Citation:

Brown v State of New South Wales (Department of Education and Communities) (No 2) [2015] NSWIC 1

Hearing dates:

7 November 2014

Date of orders:

23 January 2015

Decision date:

23 January 2015

Before:

Boland AJ

Decision:

The Court makes the following orders:

The respondent shall pay 40 per cent of the applicant's cost as agreed or assessed on a party/party basis.

Indemnity costs are refused.

Interest pursuant to s 101 of the Civil Procedure Act 2005 shall run on Orders (3) and (4) of the judgment in Brown (No 1) from 20 December 2013 and applied to a salary of $51,363.54.

Interest pursuant to s 100 of the Civil Procedure Act 2005 shall run on Orders (3) and (4) of the judgment in Brown (No 1) for the period from 30 March 2011 up to and including 19 December 2013. The rate of interest shall be in accordance with the Supreme Court Scale and applied to a salary of $51,363.54.

The stay order made by consent on 3 February 2014 is dissolved.

Catchwords:

Costs – Costs in unfair contract proceedings – Multiple issues – Apportionment – Whether indemnity costs warranted – Prejudgment and post-judgment interest

Legislation Cited:

Civil Procedure Act 2005
Industrial Relations Act 1996

Cases Cited:

Brown v State of New South Wales (Department of Education and Communities) [2013] NSWIRComm 115
Cretney v Director General, New South Wales Department of Education and Training (No 4) [2010] NSWIRComm 17
Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 18) [2011] NSWIRComm 87
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Sewell v Zelden (No 2) [2010] NSWSC 1181
State of New South Wales v Gayle Maree Brown [2014] NSWCA 365
Tuholi Pty Limited v Caltex Australia Petroleum Pty Limited (2001) 103 IR 329

Category:

Costs

Parties:

Gaylee Maree Brown (Applicant)
State of New South Wales (Department of Education and Communities) (Respondent)

Representation:

Counsel:
Dr J Berwick of counsel (Applicant)
A Britt of counsel (Respondent)

Solicitors:
Craddock Murray Neumann (Applicant)
Crown Solicitors Office (Respondent)

File Number(s):

Matter No IRC 312 of 2011

Judgment

1. In Brown v State of New South Wales (Department of Education and Communities) [2013] NSWIRComm 115 (“Brown (No 1)”, which involved proceedings under the unfair contract provisions (Ch 2, Pt 9) of the Industrial Relations Act 1996 (the Act), I made orders in the applicant’s favour, declaring that a contract between the applicant and the respondent was unfair, varying the contract and making money orders.

2. In Brown (No 1), I the parties were ordered to file and serve written submissions on the question of costs and interest and in the absence of any application to be heard orally, those questions would be determined on the papers. However, the respondent short circuited that course and sought leave to appeal my judgment in the Court of Appeal. Leave was refused: State of New South Wales v Gayle Maree Brown [2014] NSWCA 365.

3. The parties have now filed their submissions on costs and interest and this judgment deals with those issues.

Background

4. The respondent, in its written submissions, accurately summarised the essence of the applicant’s claim including the applications to amend the claim on three occasions (footnotes omitted):

The Applicant in her Summons for Relief filed on 30 March 2011 sought an order declaring that the contract or arrangement whereby the Applicant worked for the Respondent variously as cleaner, secretary, tutor and Aboriginal Education Officer between 1997 and 2010 was an unfair contract within the meaning of Section 106 of the Act.

The Applicant also asserted her true role was that of a teacher. The Applicant sought the difference in payment between what she had been paid and that of a qualified primary school teacher and payment in lieu of six months’ notice as a qualified primary school teacher.

In addition, the basis for non-appointment as an Aboriginal Education Officer was said to be unfair because the Respondent failed to give any or any adequate weight to the Applicant’s qualifications for the Aboriginal Education Officer’s position when it was eventually advertised.

The applicant amended her Summons for Relief on 18 June 2011. In the amended Summons the Applicant added new claims; (A3)(any complaint by the Applicant would not prejudice her claims for the position of Aboriginal Education Officer); A(4) (where the Applicant had performed adequately in the position of Aboriginal Education Officer over a period of years that fact would be given significant weight in assessing her application for that position); A(5) (in considering the Applicant’s suitability for the position of Aboriginal Education Officer the lack of employment opportunities in Weilmoringle would be a consideration and A(6) where the applicant had performed the role of a teacher she would be given special consideration in her application for the position of Aboriginal Education Officer. The Applicant also added a claim for 12 months’ salary as compensation for loss of income and employment opportunity associated with the failure to be appointed as a permanent Aboriginal Education Officer, at the current rate. The basis for unfairness in respect to the non-appointment of the Applicant remained the same but also included a claim that the contract failed to protect the Applicant in the selection process for an Aboriginal Education Officer where she had made a complaint.

On 24 April 2013 the Applicant filed and served the Further Amended Summons. The further amendment was to include a claim that the Applicant be paid an amount of 24 month’s salary by reason of lost employment opportunity at the current rate. The Applicant also sought an order that the contract of arrangement “be varied to include a term that in the circumstances where the Applicant had carried out the functions of a qualified teacher she should be given special consideration in her application for a full-time Aboriginal Education Officer position.” The basis for unfairness in respect to the non-appointment of the Applicant remained the same.

The Respondent objected to certain amendments to the further Amended Summons and the Court struck out some paragraphs.

It was the Further Amended Summons that was to constitute the basis for the Applicant’s case.

On 13 August 2013, which was the date set for final submissions, the Applicant filed a Notice of Motion seeking a second further amendment to the summons. Having heard the parties the Court offered the Applicant the option of having the Motion dismissed and proceeding to deal immediately with final submissions, or adjourning the proceedings, including the motion, to provide the Respondent with the opportunity of dealing with the second further amended summons. The Applicant chose the latter course and the matter was listed for hearing on 11 November 2013.

The Court refused to grant the Notice of Motion and refused leave to the Applicant to further amend the Summons for Relief.

Court’s findings in Brown (No 1)

5. In Brown (No 1) I made the following relevant findings:

1. The relevant contract between the applicant and the respondent was terminated on 18 April 2010.

2. There were three limbs to the applicant's unfair contentions. The first limb concerned the unfairness of the contract that led to the applicant's failure to secure the permanent position of Aboriginal Education Officer (AEO) at the School, notwithstanding that she had fulfilled that role satisfactorily for the previous four years and had an expectation of being permanently employed. The second limb involved the contention that Ms Brown was required to undertake and did undertake the work of a teacher contrary to her job description as an AEO. The third limb was that although the applicant performed the work of a teacher, she was paid less than that prescribed for the work of a teacher under the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award.

3. The second and third limbs were not made out.

4. There were four aspects to the first limb of the applicant’s claim:

1. the contract did not contain a term that any complaint made by the applicant in regard to her role would not prejudice her application for the position of AEO. In the absence of this term it permitted the respondent to regard the making of complaints as counting against the applicant in what was an unfair selection process that resulted in the applicant failing to gain the permanent AEO position;

2. the contract did not contain a term that in circumstances where the applicant had performed adequately in the position of AEO over a period of years, that fact would be given significant weight in assessing her application for permanent appointment in that position. In the absence of this term the contract permitted the respondent to disregard the applicant's good performance in conducting what was an unfair selection process for the permanent AEO position;

3. the contract did not contain a term that in considering the applicant's suitability for the full-time position of AEO the lack of employment opportunity for her in Weilmoringle would be a consideration. In the absence of this term it permitted the respondent to disregard the lack of employment opportunities in conducting an unfair selection process for the permanent AEO position;

4. the contract did not contain a term that in circumstances where the applicant had carried out the functions of a qualified teacher, she would be given special consideration in her application for a full-time AEO position.

1. The first, third and fourth aspects of the applicant’s first limb were not made out.

2. (6) The second aspect of the first limb was made out. Accordingly, I found that the contract was unfair in that the contract did not contain a term that in circumstances where the applicant had performed adequately in the position of AEO over a period of years, that fact would be given significant weight in assessing her application for permanent appointment in that position. In the absence of this term the contract permitted the respondent to disregard the applicant's good performance in conducting what was an unfair selection process for the permanent AEO position.   

3. The temporary employment contract between the applicant and the respondent that applied to the applicant's employment as at 17 April 2010 was varied to provide a term that in circumstances where the applicant had performed adequately in the position of AEO over a period of years, that fact will be given significant weight in assessing her application for permanent appointment in that position.

4. I found that the applicant should receive an amount of 12 months' salary as compensation for the loss of income and employment opportunity associated with the failure to be appointed as a full-time Aboriginal Education Officer, which amount to be calculated at the current rate of that position.

5. In relation to the applicant’s claim for compensation for psychiatric injury, I found that a payment that would enable the applicant to afford the cost of psychological and psychiatric consultation and the cost of antidepressant medication over a 12 month-period would be reasonable and considered an amount of $5,000 was appropriate.

6. I made the following orders:

(1) I declare the temporary employment contract between the applicant and the respondent that applied to the applicant's employment as at 17 April 2010 was an unfair contract.

(2) The contract referred to in order (1) hereof is varied to provide a term that in circumstances where the applicant had performed adequately in the position of AEO over a period of years, that fact will be given significant weight in assessing her application for permanent appointment in that position.

(3) In connection with the contract as varied in accordance with order (2) hereof the respondent shall pay to the applicant an amount of 12 months' salary as compensation for the loss of income and employment opportunity associated with the failure to be appointed as a full-time Aboriginal Education Officer, which amount to be calculated at the current rate of that position.

(4) In connection with the contract as varied in accordance with order (2) hereof the respondent shall pay to the applicant an amount of $5,000 in addition to that ordered in order (3) hereof as compensation for costs associated with the psychiatric injury.

6. As to costs and interest, I stated at [200]:

[T]he applicant has 28 days from the date of this judgment to file and serve written submissions regarding those matters. The respondent has a further 14 days to file written submissions in reply. Unless either party wishes to make oral submissions on costs and interest that issue will be determined on the papers.

Applicant’s claim for costs and interest

7. The applicant contended that the circumstances of the case warranted the Court departing from the usual course, and that the applicant’s costs should be paid on the usual basis from the date of application (30 March 2011) to 11 July 2011 and on an indemnity basis from date the respondent filed its defence on 12 July 2011 or, in the alternative, from 14 September 2011.

8. The claim for indemnity costs was put on two bases:

1. The Respondent had no reasonable prospects of defending against its failure to take into account the Applicant's four years' experience as a temporary Aboriginal Education Officer at Weilmoringle Public School (which was behaviour that his Honour's variation to the Applicant's temporary contract of employment sought to protect against) in appointing Lesley Annis-Brown and not the Applicant in the permanent Aboriginal Education Officer position at the School; and

2. The Respondent failed to produce documents in response to the Notices to Produce dated 14 September 2011 and 16 November 2011 which, had the Respondent acted reasonably, could have resulted in the resolution of proceedings in 2011 at a minimum of time and expense.

9. The applicant claimed pre-judgment interest on damages from 17 April 2010, which was when the applicant’s contract was terminated, and in the alternative, pre-judgment interest on damages from May or June 2010, the months in which it was submitted the applicant endured the unfair application and process and was advised she was unsuccessful in obtaining the permanent AEO position.

10. Post-judgment interest was claimed from 20 December 2013.

Respondent’s position regarding costs and interest

11. The respondent’s position regarding costs was as follows:

1. No costs be ordered in respect to the costs associated with the amendment to the Summons for Relief filed on 24 June 2011;

2. No costs be ordered with respect to the costs associated with the further amendment of the Summons for Relief filed on 24 April 2013;

3. The applicant pay the respondent’s costs with respect to the Notice of Motion of 13 August 2013 seeking a second further amendment of the Summons for Relief;

4. The respondent pay the applicant 20% of her costs in the substantial proceedings as agreed or assessed (having excluded those matters at (a), (b) and (c) above);

5. Any such costs be agreed or as assessed on a party/party basis.

12. The respondent’s primary position regarding interest was that no interest should be awarded. In the alternative, the respondent submitted interest should be calculated in accordance with the Supreme Court scale from date of filing of the original Summons for Relief (30 March 2011) until date of judgment (20 December 2013).

Relevant principles

13. Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 18) [2011] NSWIRComm 87 concerned the question of costs arising out of litigation that spanned over a decade. In that case I summarised the principles, as I understood them, governing the awarding of costs by the Industrial Court. The summary appears at [71] of the judgment:

[71] The principles I draw from the foregoing discussion of the authorities, which are relevant to these proceedings, and which I propose to apply, may be summarised as follows:

(1) the Court has a wide discretion under s 181 of the IR Act to award costs and may determine by whom and to what extent costs are to be paid ;

(2) rule 42.1 of the UCPR places a limited proscription on the wide discretion to award costs in that the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs;

(3) rule 42.1 of the UCPR reflects the general law position that a successful party has a "reasonable expectation" of being awarded costs against the unsuccessful party. Thus, the presumption is that costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. The qualification, however, means there is no absolute or automatic rule that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party;

(4) the purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made;

(5) the discretion to award costs must be exercised judicially. The discretion cannot be exercised arbitrarily or capriciously and it cannot be exercised on grounds unconnected with the litigation or the circumstances leading to the litigation;

(6) although the ordinary rule is that costs follow the event, the "event" extends to any disputed question of fact or law and is not limited to "issues" in the technical sense;

(7) it is not necessary to first find in terms or to the effect that it is a most exceptional case, or a strong or exceptional case, before ordering a successful party to pay costs of an unsuccessful party, but there must be a proper basis to do so consistent with r 42.1 of the UCPR ;

(8) whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed;

(9) unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed;

(10) a separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter;

(11) it may be appropriate, where each party has had substantial success, to order that there be no order as to costs;

(12) the exercise of the discretion to award costs is underpinned by notions of fairness; fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the usual rule, it should be applied;

(13) it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument;

(14) where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation;

(15) a successful party may, in appropriate circumstances, be ordered to pay the costs of an unsuccessful party where the Court finds disentitling conduct, or misconduct, on the part of the successful party such as to warrant a costs order against it;

(16) the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute;

(17) in determining whether the successful party is guilty of misconduct (or disentitling conduct), the conduct must relate either or both to the litigation and/or the circumstances leading up to the litigation; and

(18) disentitling conduct does not necessarily need to amount to misconduct.

14. The foregoing summary is not, in my opinion, inconsistent with the principles summarised in an earlier Full Bench decision of the Court in Cretney v Director General, New South Wales Department of Education and Training (No 4) [2010] NSWIRComm 17 at [8]. The respondent relied in particular on a number of the principles identified in Cretney (No 4) (as well as the principles summarised in Gough and Gilmour (No 18)) as follows:

…

(h) Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Elite Protective Personnel, citing Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported) (see also Bostik and Bonic). However, in Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 Finkelstein and Gordon JJ stated that:

Costs are in the court’s discretion. Fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied.

See also Hodge v TCN Channel Nine (No 2) [2006] NSWSC 1272 and Standard Commodities Pty Ltd v Societe Socinter Department Centragel [2005] NSWSC 493; (2005) 54 ACSR 496.

(i) A separable issue can relate to ‘any disputed question of fact or law’ before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: Elite Protective Personnel citing James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34] (see also Bostik and Bonic).

(j) It may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Elite Protective Personnel, citing Sabah Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 at [24] (see also Bostik and Bonic).

(k) If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Elite Protective Personnel, citing Sydney City Council v Geftlick (No 2) [2006] NSWCA 374 at [27] (see also Bostik and Bonic).

(l) Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: Elite Protective Personnel citing James v Surf Road Nominees Pty Ltd (No 2), which in turn cited Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272 (see also Bostik and Bonic).

15. I propose to apply the principles summarised in Gough and Gilmour (No 18) and Cretney (No 4). There was no dispute that these are the relevant principles.

16. The question of indemnity costs also arises for consideration and is touched upon at [71(16)] of Gough and Gilmour (No 18). Additionally, it may be noted that s 98(1)(c) of the Civil Procedure Act 2005 provides that costs may be ordered on an indemnity basis. In Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [44], Gaudron and Gummow JJ observed in relation to indemnity costs (footnotes omitted):

[44] It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a "solicitor and client" basis or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part.

17. In Tuholi Pty Limited v Caltex Australia Petroleum Pty Limited (2001) 103 IR 329) Wright J, President deduced a number of propositions from relevant authorities regarding indemnity costs at [40]:

1. It is only in exceptional cases where a court would make a costs order other than on the usual party/party basis.

2. The grant of indemnity costs is to be seen as an unusual and exceptional course and would only occur where there is some special or unusual feature of the case to justify the Court in departing from the usual practice.

3. Nevertheless, the grant of indemnity costs is, as with any exercise of judicial discretion, one to be exercised in all the circumstances of the case and, provided regard is had to the "exceptional" nature of such an order, the primary consideration with all such discretionary orders is that it will occur "as and when the justice of the case might so require".

4. Although most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of facts which would be capable, if they existed, of warranting a departure from the usual rule, nevertheless "the categories in which the discretion may be exercised are not closed".

5. Further, a too rigid or narrow approach may lead to error in the exercise of discretion.

6. Although there are a number of recent judgments to the effect that there should be an increased tendency towards the awarding of indemnity costs, such statements should be applied with great caution in the light of the existence and operation of the general approach as to the usual way in which costs orders will be made.

7. It is also important to ensure that considerations such as mere "fierce opposition to the claim" or the conduct of a respondent which might justify the grant of the substantive application are not matters which, in themselves, would lead to the grant the costs on an indemnity basis.

18. A situation in which indemnity costs may be ordered includes where a party has maintained proceedings that they should have known had no real prospect of success: see, for example, Sewell v Zelden (No 2) [2010] NSWSC 1181 at [53].

Consideration

Issues

19. It seems to me the parties have raised six issues that I need to address:

1. Whether no costs should be ordered in respect of the costs associated with the applicant’s amendment of the Summons for Relief filed on 18 June 2011.

2. Whether no costs should be ordered in respect of the costs associated with the further amendment of the Summons for Relief filed on 24 April 2013.

3. Whether the applicant should pay the respondent's costs as agreed or assessed in respect of the Notice of Motion of 13 August 2013 seeking a second further amendment of the Summons for Relief.

4. Whether the respondent should pay the applicant only 20 per cent of her costs in the substantial proceedings as agreed or assessed (having excluded those matters at (1), (2) and (3) above).

5. Whether all costs ordered be as agreed or assessed on a party/party basis or whether indemnity costs should be awarded to the applicant from 12 July 2011 or, in the alternative, from 14 September 2011.

6. Whether interest should be awarded and, if so, on what basis.

Whether the applicant should receive all of her costs

20. I do not propose to deal with the costs issue in a piecemeal fashion as proposed by the respondent. I find it more convenient to deal with the first four issues identified above as one larger issue and that is whether the applicant should receive all of her costs. Noting the applicant achieved orders in her favour and that the usual rule is that costs follow the event, the question arises as to whether the applicant’s applications to amend her summons for relief, and the fact that she succeeded on only one aspect of her claim, means that costs that might otherwise be awarded in accordance with the usual rule should be discounted.

21. The respondent submitted that the Court should not order costs in respect of the costs associated with the amendment of the Summons for Relief filed on 18 June 2011 and 24 April 2013 since those amendments only arose as a result of the applicant failing to properly plead her claim at the time of filing the Summons. Further, it was submitted that in relation to the Notice of Motion of 13 August 2013:

The Court forewarned the Applicant that having heard the parties the Court offered the Applicant the option of having the motion dismissed and proceeding to deal immediately with final submissions or adjourning the proceedings, including the motion, to provide the Respondent with the opportunity of dealing with the second further amended summons. The Applicant chose the latter course and the matter was listed for hearing on 11 November 2013. At such hearing the Applicant was unsuccessful. The conduct of the Applicant in continuing to press the motion (especially given its lateness) caused the Respondent to incur costs.

Further, if the Notice of Motion had been filed in the ordinary course of preparing for hearing and had been unsuccessful the Applicant would usually have to pay the Respondent’s costs: Illawarra Breads Pty Limited and ors v Baker’s Delight Holdings Limited [2007] NSWIRComm 260 at [21]; Davies v Kyogle Shire Council; Darc Rasmussen v Eltrax Systems Pty Ltd & ors (No.4) [2007] NSWIRComm 9 at [42]; Myra Virtue v New South Wales Department of Education and Training [1999] NSWIRComm 448; McRann v Unitedglobalcom.Inc and ors [2003] NSWIRComm 131; and Clark and Doherty v The State of New South Wales [2002] NSWIRComm 274.

In such circumstances the Applicant should pay the Respondent’s costs in respect to the Notice of Motion on 13 August 2013 seeking a second further amendment of the Summons for Relief as agreed or assessed.

22. In the ordinary course, if the applicant had been wholly successful in her claims, the Court would not discount costs in the applicant’s favour by reason of the amendments to the Summons for Relief on 18 June 2011and 24 April 2013. The respondent did not contend these amendments caused it to incur extra costs or that the applicant behaved unreasonably or engaged in improper conduct in pursuing the amendments. There is no reason to take a different view where the applicant has only been partly successful in her claims.

23. In relation to the Notice of Motion filed on 13 August 2013, in the ordinary course I would order the applicant to pay the respondent’s costs of that Motion. It was quite unreasonable conduct for the applicant to seek further amendment of the Summons after the parties’ evidentiary cases had closed and on the day allocated for final submissions. The filing of the Motion resulted in a three-month delay, inconveniencing both the Court and the respondent. What is more, the application to further amend failed.

24. Whilst the general rule is that a court should ordinarily award the cost of proceedings to the successful party without differentiating between the issues on which the party succeeded and the issues in relation to which the party failed, it is my view that in this case to apply that general rule would lead to an unfair result.

25. It is to be remembered that the applicant’s claim was based on three limbs and the applicant succeeded on only one such limb. Even on the limb where the applicant was successful, this limb only succeeded on one of four bases.

26. The respondent is correct in contending that the majority of the applicant's evidence, the cross-examination of the applicant and her witnesses, the respondent's evidence, the cross examination of the respondent's evidence and the parties’ submissions focussed upon those matters where the applicant was unsuccessful. As the respondent submitted:

This is best illustrated by the Commission’s own summary of the evidence where only three paragraphs ([99]-[101] concerned the issue upon which the Applicant succeeded. The vast majority of the consideration of the evidence was in respect of those claims upon which the Applicant did not succeed ([53]-[98], [103]-[122]).

27. The second and third limbs of the applicant’s case and the first aspect of first limb, as I earlier described them, were the dominant issues in the proceedings and are readily separable from the issue upon which the applicant was ultimately successful. The respondent was correct in contending the issues upon which the applicant failed were clearly separated disputed questions of fact compared to the one matter where the applicant was successful.

28. Having said all this, the aspect in relation to which the applicant was successful was not insignificant. It attracted a money order of 12 months’ pay and $5,000 for medical expenses.

29. As it was summarised in Gough and Gilmour (No 18):

Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation.

30. Having regard to all of the matters I have addressed, I propose to order that the respondent pay 40 per cent of the applicant’s cost as agreed or assessed.

Indemnity costs

31. I identified earlier in this judgment the two bases relied upon by the applicant to claim indemnity costs, they being (i) that the respondent had no reasonable prospects of defending against its failure to take into account the applicant's four years' experience as a temporary AEO in considering her application for the permanent AEO position at the School; and (ii) the respondent failed to produce documents in response to the Notices to Produce dated 14 September 2011 and 16 November 2011 which it was submitted, had the respondent acted reasonably, could have resulted in the resolution of proceedings in 2011 at a minimum of time and expense.

32. In relation to the first basis relied upon by the applicant, the respondent’s failure to take into account the applicant’s experience as a temporary AEO in considering the applicant for a permanent position was not the only issue the respondent was required to defend. The main claim from the outset was to the effect that the contract or arrangement whereby the applicant worked on a temporary basis in various classifications such as cleaner, secretary, tutor and AEO was unfair as the contract or arrangement failed to take into account the reality of the applicant's true role as a teacher.

33. Whilst it was asserted in the original Summons for Relief that the contract or arrangement was unfair because it failed to give any, or any adequate, weight to the applicant's qualifications for the AEO position when it was eventually advertised, no order was sought seeking a variation of the contract to remedy that alleged unfairness and no money order was sought in relation to that alleged unfairness. The Summons was then amended to overcome these deficiencies and then further amended to seek an amount of 24 months’ salary “by reason of loss of employment opportunity”.

34. The applicant’s claim was something of a moving feast. Indeed, amendments were sought to be made to it as late as the date set for final submissions. I do not think the applicant should gain the benefit of indemnity costs in circumstances where the respondent had to defend shifting multiple claims, where there was no advantage to be gained by it in conceding one of the claims and where I do not think it could be said that its defence of the failure to have regard to the applicant’s experience as a temporary AEO was so intrinsically hopeless in the overall context of the applicant’s claims that it was unreasonable for the respondent not to concede on that one issue. I do not consider there is anything special or unusual about the case that would justify the Court in departing from the usual practice of ordering costs on a party/party basis.

35. As to the second basis for indemnity costs, there is no basis for concluding there was any misconduct by the respondent in that documents were held and not produced or deliberately destroyed once a Notice to Produce was issued. The judgment in Brown (No 1) (at [150(j)]) is sceptical about why the recruitment file was not able to be produced, but that is not a sufficient basis upon which to order indemnity costs in the applicant’s favour.

36. The applicant’s claim for indemnity costs is refused.

Interest

37. The respondent conceded that interest should be paid after judgment (20 December 2013) pursuant to s101 of the Civil Procedure Act. Accordingly, I propose to so order.

38. The respondent opposed an order for interest up to judgment. Its main contention in that regard was that the function of an award of interest is to compensate an applicant for loss or detriment suffered by being kept out of her or his money during the relevant period. By ordering the payment to the applicant at the 2013 rates rather than those in 2010 the Court had “in excess already compensated the Applicant for the loss suffered up until the date of judgment.”

39. The basis upon which the money order was made was what I considered to be just in the circumstances of the case: s 106(5) of the Act. Nevertheless, I acknowledge there is some merit in the contention that if interest is applied to the rate applicable as at December 2013 and made payable from 2010 as claimed by the applicant, some measure of double dipping might be said to arise.

40. In the circumstances, I propose to order prejudgment interest calculated on a salary applicable at time of judgment for a permanent Aboriginal Education Officer of $51,363.54. The rate of interest will be in accordance with the Supreme Court Scale from the date of filing the application on 30 March 2011 until the date of judgment.

Orders

41. The Court makes the following orders:

1. The respondent shall pay 40 per cent of the applicant's cost as agreed or assessed on a party/party basis.

2. Indemnity costs are refused.

3. Interest pursuant to s 101 of the Civil Procedure Act2005 shall run on Orders (3) and (4) of the judgment in Brown (No 1) from 20 December 2013 and applied to a salary of $51,363.54.

4. Interest pursuant to s 100 of the Civil Procedure Act 2005 shall run on Orders (3) and (4) of the judgment in Brown (No 1) for the period from 30 March 2011 up to and including 19 December 2013. The rate of interest shall be in accordance with the Supreme Court Scale and applied to a salary of $51,363.54.

5. The stay order made by consent on 3 February 2014 is dissolved.

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Decision last updated: 23 January 2015