Burns v Director General of the Department of Education (No.2)
[2015] FCCA 2293
•28 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BURNS v DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION (No.2) | [2015] FCCA 2293 |
| Catchwords: COSTS – Applicant successful on three of thirteen claims identified in judgment – quantum of costs payable – whether costs to be apportioned – whether no order as to costs. |
| Legislation: Disability Discrimination Act 1992 (Cth), s.3(c) |
| Apostolidis & Ors v Kalenik & Ors (No. 2) [2011] VSCA 329 R Allen, Allen’s Dictionary of English Phrases (London: Penguin, 2006) |
| Applicant: | TAHLIA BELLA BURNS BY HER LITIGATION GUARDIAN, DAVID JOHN BURNS |
| Respondent: | DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION |
| File Number: | PEG 69 of 2012 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 11 August 2015 |
| Date of Last Submission: | 11 August 2015 |
| Delivered at: | Perth |
| Delivered on: | 28 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Draper |
| Solicitors for the Applicant: | Granich Partners |
| Counsel for the Respondent: | Ms CJ Thatcher |
| Solicitors for the Respondent: | State Solicitor’s Office |
ORDERS
The respondent pay to the Public Trustee under the Public Trustee Act 1941 (WA) (“Public Trustee”) in trust for the applicant until she attains the age of 18 years the sum of $8,000 by way of damages awarded in these proceedings.
The applicant’s litigation guardian provide forthwith to the Public Trustee a contact address, and is thereafter to advise the Public Trustee within seven days of any change to the contact address.
The hearing of the matter be adjourned to 9.00am on 4 September 2015 for submissions with respect to the quantum of costs, such costs to be calculated on the basis that the respondent is to pay twenty-five percent of the applicant’s costs under Part 1 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth), with each party to file a schedule of costs by noon on 3 September 2015, unless the parties reach agreement as to the quantum of costs and file a Minute of Consent Order reflecting their agreement prior to noon on 3 September 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 69 of 2012
| TAHLIA BELLA BURNS BY HER LITIGATION GUARDIAN, DAVID JOHN BURNS |
Applicant
And
| DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION |
Respondent
REASONS FOR JUDGMENT
Introduction
In Tahlia Bella Burns by her Litigation Guardian David John Burns v Director General of the Department of Education [2015] FCCA 1769 (“Burns (No. 1)”) this Court:
a)concluded at [317]-[318] per Judge Lucev that:
a) the Director General has discriminated against Tahlia on the ground of her disability in relation to:
i) requiring her to use inadequate toilet facilities from Term 4 2009 to November 2010;
ii) the use of the disabled parking bays which were too narrow; and
iii) Tahlia having to use ramps which were too steep to access her Year 1 classroom in 2010, and her Year 2 classroom for a week in May 2011,
but that otherwise the claims of disability discrimination, and breach of the Disability Standards and Access to Premises Standards, have not been made out; and
b) Tahlia is entitled to damages in the sum of $8,000.
318. With respect to damages, the Court is of the view that the proper order would see the amount of damages paid into an account supervised by an independent trustee: see, for example, the order made in Travers. The Court will also need to hear the parties as to costs. Having regard to those matters there will be an order that the parties confer forthwith, with a view to reaching agreement and filing a minute of proposed consent order to reflect these Reasons for Judgment, but otherwise adjourning the matter to a further directions hearing at 4.00pm on 17 July 2015.
b)made the following order:
The parties confer forthwith with respect to the form of the final order as to damages, and costs. Any minute of proposed consent order be filed by 4.00pm on 15 July 2015, but otherwise the matter is adjourned to a further directions hearing at 4.00pm on 17 July 2015.
At a further directions hearing on 11 August 2015:
a)there was agreement that the order with respect to damages provide for the amount of damages to be paid into an account supervised by the Public Trustee under the Public Trustee Act 1941 (WA); and
b)costs were argued.
The parties’ submissions and the Court’s conclusion are set out below.
Applicant’s submissions
The applicant’s submissions were as follows:
a)the applicant’s sole cause of action was founded in discrimination in breach of Disability Discrimination Act 1992 (Cth) (“DD Act”);
b)the following findings were made in respect of thirteen grounds of alleged discrimination made by the Applicant against the Director General:
(i) Speech and PODD book use No discrimination (ii) Box chair Insufficient evidence of discrimination (iii) Reluctance to enrol at Kardinya Primary School (“KPS”) No discrimination (iv) Inadequate toilet facilities Direct discrimination (v) 2011 classroom No discrimination (vi) Failure to consult No discrimination (vii) Separation from class/denial of access No discrimination (viii) Disability bays Discrimination (ix) Steep ramps Discrimination (x) Education Assistant (“EA”) Training No discrimination (xi) Training for walker use No discrimination (xii) Exclusion from specialist lessons No discrimination (xiii) Year 3 enrolment No discrimination c)the thirteen grounds of discrimination can be grouped in three groups as follows:
Group 1 – Exclusion from school or school facilities:
Item Description (iii) Reluctance to enrol at KPS (iv) Inadequate toilet facilities (v) 2011 Classroom (vii) Separation from class/denial access (xii) Exclusion from specialist lessons (xiii) Year 2011 Enrolment Group 2 – Use of equipment and teacher training:
Item Description (i) Speech and PODD book use (ii) Box Chair (vi) Failure to consult (re use of equipment/training) (x) EA training (xi) Training for walker use Group 3 – Building compliance
Item Description (viii) Disability bays (ix) Steep ramps d)if the grounds of discrimination are compartmentalised as above it is clear that the evidence required by both parties focused primarily on those three area’s and that the evidence was not duplicated nor required primarily in respect of the unsuccessful grounds that were not evidenced.
Respondent’s submissions
The respondent submitted as follows:
a)while the respondent is not able to identify any cases where an application under the DD Act has resulted in no order as to costs, it would be open to the Court to make such an order in the exercise of its discretion;
b)as the applicant was partially successful in her claim, the following options arise for consideration by the Court in relation to the determination of costs:
i)the respondent pay the whole of the applicant's costs;
ii)the respondent pay a percentage of the applicant’s costs reflecting the extent to which the applicant was successful;
iii)the respondent pay a percentage of the applicant’s costs reflecting the extent to which the applicant was successful and the applicant pay a percentage of the respondent’s costs reflecting the extent to which the applicant was unsuccessful; or
iv)there be no order as to costs;
c)while it is accepted that a Court considering costs in a case such as this (where the apportioning of costs is a possibility) does so primarily as a matter of impression and evaluation rather than with arithmetical precision, a “mathematical” consideration of the matter highlights the extent to which the applicant’s case failed and resulted in discrete and significant additional costs;
d)the Court identified the applicant as pursuing 13 allegations of discrimination: the applicant was successful in relation to three of those allegations. Fifty one paragraphs of the Reasons for Judgment in Burns (No.1) addressed the successful allegations: 224 paragraphs addressed the unsuccessful allegations;
e)the applicant sought nine remedies (Points of Claim at [75]): she was successful in relation to one remedy, namely damages;
f)the vast majority of the evidence for both the applicant and the respondent and much of the Reasons for Judgment in Burns (No.1) were focused on issues in relation to which the applicant was not successful;
g)the applicant’s success and award of damages is disproportionately small compared with the litigious effort by both parties;
h)applying the principle that the ultimate aim of a costs order is to do substantial justice between the parties, the applicant’s limited measure of success makes this an appropriate case for the apportionment of costs (that is, option (iii) in sub-paragraph [(b)] above). An apportionment of both parties' costs by reference to their overall success will favour the respondent; and
i)in all the circumstances, the Court should make no order as to costs.
Consideration
Relevant legislative provisions
Section 79 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) provides the Federal Circuit Court with the power to award costs in these proceedings as follows:
(1) ….
(2) The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (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 Court of Australia or Judge.
Part 21 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) sets out the relevant provisions regarding costs. Rule 21.02(2) of the FCC Rules states:
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
Case law
The discretion to award costs is “absolute and unfettered”, but must be exercised judicially: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 46 FLR 225; (1993) 118 ALR 248; (1993) 28 IPR 561; FCR at 230 per Sheppard J; Bluechip Development Corporation (Gladstone) Pty Ltd v Sunstruct Pty Ltd (No. 2) [2013] FCCA 1898 at [74] per Burnett J. The High Court has recently stated that the discretion as to costs:
[W]ill be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the court. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires.
Gray (by her tutor Gray) v Richards (No. 2) [2014] HCA 47; (2014) 89 ALJR 113; (2014) 315 ALR 1 at [2] per French CJ, Hayne, Bell, Gageler and Keane JJ (“Gray (No. 2)”).
There are no special provisions for proceedings regarding costs under the Disability Discrimination Act 1992 (Cth) (“DD Act”). The absence of special provision confirms that the “usual principles” as to whether costs are awarded apply: Fetherston v Peninsula Health (No. 2) [2004] FCA 594; (2004) 137 FCR 262: (2004) 79 ALD 424 at [9] per Heerey J.
The ultimate aim of any costs order is to do substantial justice between the parties, based on the outcomes of the various issues in the proceeding: Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84; (2010) 182 FLR 84; (2010) 84 IPR 432 at [17] per Gray J (Lindgren and Edmonds JJ agreeing).
In BHP Billiton Iron Ore Pty Ltd v National Competition Council (No. 2) [2007] FCA 557 at [27] per Middleton J (“BHP Billiton (No. 2)”) the Federal Court summarised the usual principles in respect of costs as follows:
1. A successful litigant is ordinarily entitled to its costs even if the losing party had good legal grounds for its position and conducted itself in the litigation reasonably and appropriately;
2. The successful litigant will be so entitled to its costs unless some good reason connected to the case is shown to the contrary;
3. Without limiting the general discretion available, a good reason to the contrary may arise:
3.1 Where the conduct of the successful litigant in connection with the case was unreasonable or inappropriate;
3.2 Where no such unreasonable or inappropriate conduct of the successful litigant is found, but nevertheless there were clearly distinct and severable issues or inquiries that were lost by the successful litigant;
4. If the conduct of a successful litigant was inappropriate or unreasonable in connection with the case, the successful litigant will usually be denied all or part of its costs;
5. Where the court is considering the question of costs in respect of a lost distinct or severable issue or inquiry, which can clearly be treated as distinct and severable, then to determine whether the successful party will lose some or all of its costs, it will be necessary to consider and weigh up case management principles, the significance of the issue or inquiry in proportion to the proceeding as a whole, and whether the issue or inquiry had any relative strength or merit;
6. The court has the discretion to apportion costs even if it cannot identify separate costs in respect of distinct or severable issues or inquiries on which the successful litigant failed, but the matters on which the party failed must be at least capable of separation from the matters on which the litigant was successful.
While parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; (2002) 54 IPR 495; NRMA Ltd & Ors v Morgan & Ors (No. 3) [1999] NSWSC 768 at [24] per Giles J.
As indicated in BHP Billiton (No. 2) and in Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) at [6] per McLure P, Newnes and Murphy JJA (“Bowen”) the Court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. This exercise is one based largely on impression, rather than as a matter of arithmetic but the apportionment of costs should not be seen as the usual outcome when both parties have been partly successful: see generally G Dal Pont, Law of Costs (3rd Edn) (Chatswood: LexisNexis Butterworths, 2013) 199-203 at [8.5]-[8.7] (“Dal Pont, Costs”), and Bowen at [6]-[7] per McLure P, Newnes and Murphy JJA.
In Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65 (S) (“Motium”) the Supreme Court of Western Australia, Court of Appeal, in the context of deciding that an award of nominal damages is no longer a peg upon which to hang an application for costs, has stated that “it would be contrary to modern notions of the efficient and cost-effective use of judicial resources to enable a party to recover its costs for a pyrrhic victory, having substantively failed in the action”: Motium at [10] per McLure P, Newnes and Murphy JJA.
Where both parties have enjoyed a measure of success, the parties’ relative successes and failures may be reflected by the making of an order that each party bear their own costs: Apostolidis & Ors v Kalenik & Ors (No. 2) [2011] VSCA 329 [59]-[60] per Nettle, Ashley and Tate JJA, applied in Burbank Australia Pty Ltd v Owners Corporation (No. 2) [2015] VSC 200 [5]-[6] per McDonald J.
This Court, in dealing with an application for apportionment of costs, observed in Fortron Automotive Treatments Pty Ltd v Jones & Ors (No. 6) [2013] FCCA 2045 (“Fortron (No. 6)”) at [11] per Judge Lucev (citing Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) & Anor v Lane Industries Pty Ltd & Ors (1993) 26 IPR 261 at 271 per Gummow, French and Hill JJ) as follows:
Ordinarily, costs follow the event, but may be apportioned, and where a considerable part of a hearing is occupied in dealing with and determining issues on which a party fails, there may be a proportionate reduction in an award of costs. Apportionment is not a mathematical exercise, but an exercise of the Court’s discretion, and a matter of impression and evaluation.
The Court observes that in Hockey v Fairfax Media Publications Pty Limited (No. 2) [2015] FCA 750 at [88] per White J (“Hockey”) the Federal Court observed as follows:
However, courts are now more ready to apportion the costs awarded to a party who succeeds in only some of the claims he or she brings. This may reflect the increasing factual and legal complexity of modern litigation and the multiplicity of factual and legal issues it entails, and the tendency of applicants to pursue multiple claims involving different factual enquiries in the one proceeding. It may also reflect an encouragement by the courts to applicants to exercise some discrimination in their selection of the claims they litigate. …
The Federal Court also observed in Hockey that apportionment exercises are “inherently evaluative in nature”: Hockey at [116] per White J.
Consideration
The applicant was successful on some important issues in relation to access to educational facilities. The findings as to the steepness of the ramps: Burns (No.1) at [226]-[231] per Judge Lucev, and as to the narrowness of the disability parking bays: Burns (No.1) at [211]-[213] per Judge Lucev, were in relation to general but important issues for the applicant. Likewise, the inadequate toilet facilities raise an important issue in relation to the dignity of the applicant and the facilities available for her: Burns (No.1) at [134]-[138] per Judge Lucev.
The issues on which the applicant were successful were not, as suggested by the respondent, a Pyrrhic victory, that is a victory won at such a great cost that it brings no benefit to the victor, as was the case when Pyrrhus Epirus fought a battle with a Roman army at Asculum in 279 BC, in the course of which Pyrrhus was victorious but lost so much of his army that he could not take advantage of his success: R Allen, Allen’s Dictionary of English Phrases (London: Penguin, 2006) page 587. In this case, the applicant has been successful on those issues, and has been awarded damages, and the matters raised create an awareness of the issues which is in the public interest for the reasons expressed by the Federal Court in Kiefel v State of Victoria [2014] FCA 604, where at [61] per Mortimer J the Federal Court observed that:
Although this proceeding is brought to vindicate what are said to be the individual entitlements of James under the DDA to have been educated in Victorian public schools in a way which, it is contended, reasonably and properly accommodated and took account of his disabilities, in my opinion there is some substance to the appellant’s submissions that there are issues of public interest involved. That is in part because the respondent is the State, and the entity charged with delivering public education in Victoria: there is a public interest in the manner in which it does that, consistently with its obligations under the DDA. There is also a public interest in the way in which the legislative scheme established by the DDA, including the operation and application of the Disability Standards, should be construed and applied as between an individual school and the State, and in the day-to-day education of a child with disabilities. …
In that regard, the Court also notes that the promotion of recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as in the rest of the community is one of the objects of the DD Act: DD Act, s.3(c).
In the above circumstances, it is appropriate that there be some order for costs in favour of the applicant. Having determined that it is appropriate to make an order for costs in favour of the applicant, the issue becomes whether the costs to be awarded should be apportioned having regard to the outcome of the proceedings.
Adopting a broad evaluative approach: Gray (No. 2) at [2] per French CJ, Hayne, Bell, Gageler and Keane JJ, there are a number of reasons which suggest that the costs of these proceedings ought to be apportioned.
Firstly, the degree of success favours apportionment because of the clearly distinct and severable issues or inquiries that were lost by the applicant: BHP Billiton (No. 2) at [27] per Middleton J; Bowen at [6] per McLure, Newnes and Murphy JJA. Mathematical precision is unnecessary and to be avoided: Dodds at 271 per Gummow, French and Hill JJ; Fortron (No.6) at [11] per Judge Lucev, but on a broad evaluation slightly less than one quarter of the individual claims made were successful, and – even though it was not the manner in which the matter was argued before, or decided by, the Court – utilising the broader categorical approach of the applicant (see [3] above), it could not in fairness be said that the applicant was successful in more than a third of the totality of the issues raised in the litigation.
Secondly, the issues on which the applicant was successful and unsuccessful were generally discrete issues, and there was no significant overlap between the issues on which the applicant was successful and the issues on which the applicant was unsuccessful.
Thirdly, the degree of success must be tempered by the narrowness of the issues on which the applicant was successful, for important as these issues were for reasons set out above: see [19]-[21] above, it remains the case that:
a)the allegations as to the steepness of the ramps were limited in time and place to the Year 1 2010 ramps, and to a week of non-access to a ramp in 2011, and the failure to make reasonable adjustment at the time, in respect of which there was a significant lack of expert evidence as to any detriment suffered by the applicant: Burns (No.1) at [228]-[230] per Judge Lucev;
b)the allegations as to the disability bays, whilst proven, were within a narrow compass, and were essentially determined by the expert evidence in the O’Brien Harrop Access Report: Burns (No.1) at [210]-[212] per Judge Lucev; and
c)the inadequate toilet facilities issue was again a narrow one, limited in time and place to between the commencement of Term 4 in 2009 and November 2010, and ultimately, turned upon, in large part, whether or not a toilet door was able to be closed to afford the applicant an appropriate measure of dignity when going to the toilet: Burns (No.1) at [134]-[135] per Judge Lucev. There was the issue of the distance which Tahlia had to traverse when going to the toilet in 2011, and whilst the Court did find discrimination in that regard, it observed that there was very little evidence as to how often the detriment was suffered, or its adverse affects: Burns (No.1) at [137] per Judge Lucev.
Overall, it is fair to observe that the evidence on the issues in respect of which the applicant was successful was within a relatively narrow compass, and as a proportion of the total evidence it was, in broad terms, rather less than the roughly one quarter to one third proportion of success on the issues by the applicant.
Fourthly, the respondent’s witnesses were not cross-examined, which resulted, on the application of conventional principles, in their evidence generally being accepted, and being preferred to the evidence of Mr and Mrs Burns, who were cross-examined, where there was a conflict on the factual material: Burns (No.1) at [14] per Judge Lucev. Although the failure to cross-examine resulted in a shorter hearing, it also meant that it was almost inevitable that when the evidence was properly evaluated the applicant was bound to lose on some issues. In Davies v Deputy Commissioner of Taxation (No. 2) [2015] FCA 880 at [17] per Perram J (“Davies (No. 2)”) the Federal Court, on deciding that some apportionment of costs should take place, took into account statutory case management provisions exhorting the Federal Court to facilitate the prompt and efficient dispatch of business, having regard to the fact that a particular argument “always appeared unable to succeed” in a particular factual situation. The FCCA Act and FCC Rules contain case management and objects provisions not dissimilar in effect to the case management provisions under consideration in Davies (No. 2): FCCA Act, ss.3 and 42 and FCC Rules, r.1.03. In the Court’s view, it would not be appropriate that the applicant be awarded costs in respect of issues on which it ought to have been obvious, in advance of the hearing, that if the respondent’s witnesses were not cross-examined, then the applicant was unlikely to succeed. In that regard, the Court notes that the applicant was represented by Senior Counsel. There was, appropriately, some effort by Senior Counsel, and solicitors, for the applicant to narrow the issues, but in the Court’s view, as is evident from the Reasons for Judgment in Burns (No.1) on some issues on which the applicant lost, those outcomes were, if not inevitable, then certainly determined either in whole or part on the basis of the unchallenged evidence of the respondent’s witnesses: see Burns (No.1) at [114] (reluctance to enrol at KPS), [181] (failure to consult), [199] (separation from class/denial of access) and [246] (employment and training of EAs).
Fifthly, taking a broad overview of the Reasons for Judgment as a whole confirms the submission made by the respondent that the majority, if not the vast majority, of the evidence of both the applicant and the respondent, and much of the Reasons for Judgment in Burns (No.1), were focussed on issues in relation to which the applicant was unsuccessful, and in relation to which – as indicated at [25] above – there was not a significant evidentiary overlap with the issues on which the applicant was successful.
Having regard to the law, and to the facts and circumstances set out above, and on the basis of a broad evaluative judgment, the Court considers it appropriate that the respondent pay 25% of the applicant’s costs. Given the degree of success of the applicant’s case, and notwithstanding the substantial success of the defence by the respondent, the Court, taking a broad view of all the circumstances and in the exercise of its discretion, is not of the view that there ought to be any order for costs in favour of the respondent.
The issue then becomes what are the applicant’s costs? Those costs are to be assessed on the basis of the fixed costs event based schedule set out in Schedule 1, Part 1 of the FCC Rules. Although a fixed costs event based schedule, the Court retains a discretion to vary the amounts, either up or down, in appropriate circumstances, but departure from the event based scale is the exception rather than the norm: FCCA Act, s.79; Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250 at [43] per Lucev FM; SZQOG v Minister for Immigration & Anor (No.2) [2013] FCCA 689 at [9] per Judge Lucev (“SZGOG (No.2)”). SZQOG (No.2) indicates that the circumstances need not be exceptional, but rather such as to justifiably or reasonably warrant the setting of costs in an increased or decreased amount.
Given the litigation history of this matter, and the number of litigation events which have occurred, the Court is of the view that it ought to hear from the parties with respect to the actual quantum of costs calculated in accordance with its finding that the respondent ought to pay 25% of the applicant’s costs on the basis of Part 1 of Schedule 1 of the FCC Rules. There will therefore be an order:
a)adjourning the proceedings to a further hearing with respect to the quantum of costs at 9.00am on 4 September 2015; and
b)for each party to file a schedule of costs by noon on 3 September 2015.
If the parties can reach agreement with respect to costs prior to noon on 3 September 2015, a consent order can be filed vacating the above hearing and dispensing with the need to file a schedule of costs, and making an order for costs in the agreed quantum (bearing in mind that the Court may also make a costs order for a fixed sum: FCC Rules, r.21.02(2)(a)).
Form of order re damages
The parties indicated agreement at hearing on 11 August 2015 to an order for the respondent to pay the sum of damages to the Public Trustee under the Public Trustee Act 1941 (WA) to be held in trust until the applicant attains the age of 18 years, which was the form of order in Stephanie Travers by her next friend, Wendy Travers v State of New South Wales [2001] FMCA 18. In response to an issue raised by the respondent the Court also indicated that it would order that the applicant’s litigation guardian provide to the Public Trustee a contact address for the litigation guardian, and will also order that the litigation guardian advise the Public Trustee thereafter within seven days of any change to the contact address. There will be orders accordingly.
Conclusions and orders
The Court has concluded that:
a)the respondent ought to pay 25% of the applicant’s costs calculated on the basis of Part 1 of Schedule 1 of the FCC Rules;
b)absent prior consent as to costs between the parties, the hearing will be adjourned to 9.00am on 4 September 2015 for further submissions as to the quantum of costs, with both parties to file a schedule of costs by noon on 3 September 2015; and
c)the form of order concerning the sum of damages awarded will provide for the respondent to pay that sum to the Public Trustee under the Public Trustee Act 1941 (WA) in trust for the applicant until she attains the age of 18 years, and for the applicant’s litigation guardian to provide forthwith to the Public Trustee a contact address, and to advise the Public Trustee thereafter within seven days of any change to the contact address.
There will be orders accordingly.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 28 August 2015
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