Bunning v Centacare (No.2)

[2015] FCCA 959

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUNNING v CENTACARE (NO.2) [2015] FCCA 959

Catchwords:

PRACTICE & PROCEDURE – Costs – assessment of costs – application in a case – applicant wholly unsuccessful.

Legislation: 

Federal Circuit Court Rules 2001

Applicant: SUSAN BUNNING

Respondent: THE CORPORATION OF THE TRUSTEE OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE TRADING AS CENTACARE

File Number: BRG 896 of 2014

Judgment of: Judge Vasta

Hearing date: In Chambers

Date of Last Submission: 31 March 2015

Delivered at: Brisbane

Delivered on: 20 April 2015

ORDERS

1. That the Applicant pay the Respondent’s costs of and incidental to the proceedings, and the Respondent’s costs of and incidental to this Application in a Case:

   (a)As assessed in accordance with the scale of costs set out in Schedule 1, Part 1 of the Federal Circuit Court Rules 2001(Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 896 of 2014

SUSAN BUNNING

Applicant

And

THE CORPORATION OF THE TRUSTEE OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE TRADING AS CENTACARE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for costs made by the Respondent. On 11 February 2015, I granted the Respondent’s application and summarily dismissed the proceedings in whole. The Respondent now seeks costs in the matter. At the time of the original application, the Respondent’s outline asked this Court to make an order for indemnity costs. I did not see that such an order was appropriate and invited the parties to make their submissions.

2. These proceedings have been conducted on the papers so as to minimise the incurring of further costs.

3. The usual principle is that costs should follow the event. If no other order is made, those costs are calculated in accordance with the scale of costs set out in Schedule 1, Part 1 of the Federal Circuit Court Rules 2001 (Cth). However, it is at the Court’s discretion to depart from the usual principle if the circumstances are such as to warrant that departure.

4. The Respondent was wholly successful in this matter. Notwithstanding that I made certain comments about my frustration in not being able to deal with the “reasonable notice” part of the claim, the fact remains that I accepted the argument of the Respondent.

5. The Applicant submits that a Court may exercise its discretion to not award costs against the unsuccessful party in circumstances where there is a public interest element to the complaint.

6. In this case, I had to make a ruling on the interpretation of the words “sexual orientation”. Such a decision may be seen to have wide ranging consequences (though how wide ranging is a matter of debate). It is also true that there was no previous judicial consideration on this point. It is submitted that my decision will therefore have some precedent value. In the circumstances, the Applicant says that there should not be any order as to costs.

7. Whilst there may be some merit in that submission, I feel that the submission amounts to a submission that, in any matter where a litigant can point to an area of public importance, such identification will thereby relieve that litigant of the ordinary burden of having an order for costs made upon an unsuccessful application.

8. I cannot agree with such a contention. Whilst the public interest element is a factor that I must consider in the exercise of my discretion, it is but one factor and it has no more importance than other factors.

9. Those other factors that I feel are also important are:-

   a)the usual rule as to costs;

   b)that the successful party should not lose the benefit of a ruling in their favour because of the burden of their own legal costs; and

   c)that the issue of a costs order should be a major consideration in the decision as to whether to bring proceedings of this type.

   Of course all matters must be decided on their own merits.

10. In this case, whilst I acknowledge the public interest element of the ruling, I do not see that such a ruling has a great deal of significance to the ordinary general public. This was a claim not brought for the benefit of polyamorists but for the specific benefit of the Applicant. From the correspondence I have seen exhibited to the affidavit of Mr Shorten filed on 9 March 2015, it cannot be said that pursuit of this matter by the Applicant is in any way a “crusade”. For that reason I do not feel that the public interest factor is a matter to which I should give significant weight.

11. As against this, the respondent has acted reasonably and has provided to the applicant the arguments upon which they based their defence of the claim at an early stage. Those arguments, in the main, were successful arguments. In my view, there is no good reason why the Respondent should not now have the benefit of the usual rule of costs following the event.

Conclusion

1. Therefore I make an order that the Applicant pay the Respondent its costs of and incidental to the proceedings, and of this present application, in accordance with the scale of costs set out in Schedule 1, Part 1 of the Federal Circuit Court Rules 2001.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date:  20 April 2015