Clack v Command Recruitment Group Pty Ltd and Anor (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLACK v COMMAND RECRUITMENT GROUP PTY LTD & ANOR (No.2) [2010] FMCA 198

HUMAN RIGHTS – Disability discrimination – application dismissed – costs awarded to respondent by reference to Federal Court Rules.

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Federal Court Rules (Cth), O.23, rr.8(2), 11, O.62, rr.19, 22, 36(2), 43, 44
Federal Magistrates Act 1999 (Cth), ss.79, 104(2)
Federal Magistrates Court Rules 2001 (Cth), rr.1.05(2), 21.02, 21.02(2), 21.02(2)(c), 21.14, 21.15, 21.16, Sch.1

Clack v Command Recruitment Group Pty Ltd & Anor [2010] FMCA 42
Dubow v Fitness First Australia Pty Ltd [2010] FMCA 56
Skalkos v T & S Recoveries Pty Ltd (2004) 65 NSWLR 151

Applicant: DARREN CLACK

First Respondent: COMMAND RECRUITMENT GROUP PTY LTD (ACN 054 275 919)

Second Respondent: MICHAEL COLLINS

File Number: SYG 3399 of 2008

Judgment of: Smith FM

Date of Last Submission: 8 March 2010

Delivered at: Sydney

Delivered on: 31 March 2010

REPRESENTATION

Counsel for the Applicant: Mr D Shoebridge

Solicitors for the Applicant: Barwick Legal

Counsel for the Respondents: Mr P Newall

Solicitors for the Respondents: Parry Carroll Lawyers

ORDERS

1. The applicant must pay the second respondent’s costs as agreed or taxed under Federal Court Rules O.62. Pursuant to Federal Magistrates Court Rules r.21.02(2)(c), refer those costs for taxation by a Registrar under O.62.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3399 of 2008

DARREN CLACK

Applicant

And

COMMAND RECRUITMENT GROUP PTY LTD
(ACN 054 275 919)

First Respondent

MICHAEL COLLINS

Second Respondent

REASONS FOR JUDGMENT

1. I have published a judgment in this matter, explaining my reasons for dismissing Mr Clack’s application under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (see Clack v Command Recruitment Group Pty Ltd & Anor [2010] FMCA 42). I am now addressing issues of costs, which the parties agreed should be decided in Chambers upon written submissions.

2. An unsuccessful applicant in a proceeding under s.46PO of the Australian Human Rights Commission Act is not protected from adverse costs orders by any provision of legislation, nor by any rules of court or practice in the Federal Court or this Court. In a recent judgment, Dubow v Fitness First Australia Pty Ltd [2010] FMCA 56, I said:

   I do not consider that costs applications in discrimination proceedings should be addressed in any manner different to those made in any other of this Court’s jurisdictions to which its general power to award costs applies, accepting that the power is discretionary and is to be exercised by reference to the circumstances of the case.  If observations of Driver FM in Hinchliffe v University of Sydney (No.2) [2004] FMCA 640 at [10] imply otherwise, then I would respectfully disagree.

   I suggested that the discretionary award of costs in such proceedings should usually follow the principle that: 

   … the usual order for costs should be made and quantified, “to indemnify the successful party” against its professional fees and out‑of‑pocket expenses at a level appropriate to a ‘party and party’ assessment…