Carey v Cairns Regional Council and Ors (No 2)

The matter before the court involved Carey, the applicant, against Cairns Regional Council and others, the respondents. The dispute centred around costs in an anti-discrimination matter, with Carey, the successful party, seeking an award of costs against the first respondent under section 102(3) of the relevant legislation, which would ordinarily only permit such an award in the case of an unsuccessful respondent applicant. The court was tasked with determining whether the prima facie position set out in section 100 of the Act should be displaced to allow for an award of costs against the first respondent.

The primary legal issue before the court was whether the discretionary power under section 102(3) of the Act could be exercised to order costs against the first respondent, who was an unsuccessful respondent applicant. This required the court to consider the statutory language, the intent behind the provisions, and the broader principles of fairness and justice in litigation. The court had to balance the legislative intent, as reflected in section 100, with the need to ensure that the proceedings were conducted in a manner that was fair and just, and that the successful party was adequately compensated for their efforts.

In reaching its decision, the court considered the language of the statute and the context in which it was enacted. The court held that while section 100 sets out the general principle that costs should not be awarded against an unsuccessful respondent applicant, section 102(3) provides a clear discretion to the court to order costs in exceptional circumstances. The court found that the circumstances of this case warranted the exercise of this discretion. The court was satisfied that the proceedings were conducted in a manner that warranted an award of costs against the first respondent, and that it was just and equitable to do so given the nature of the case and the conduct of the parties. Accordingly, the court ordered that the first respondent would pay the applicant's costs.

The court ordered that the first respondent would pay the applicant's costs of and incidental to the proceeding on the standard basis on the District Court Scale applicable to the amount recovered. The court further detailed the process for determining the amount of costs, including the requirement for the applicant to deliver an itemised claim for costs to the first respondent, with the possibility of assessment by a Legal Costs’ Assessor if the parties could not agree on the amount within 14 days. The first respondent was to pay the agreed or assessed costs within 14 days of such agreement or assessment.