Eastman v Shamrock Consultancy Pty Ltd (No.2)

[2019] FCCA 41

FEDERAL CIRCUIT COURT OF AUSTRALIA

EASTMAN v SHAMROCK CONSULTANCY PTY LTD (No.2) [2019] FCCA 41

Catchwords:
PRACTICE & PROCEDURE – Costs of an application for leave to bring proceedings under s.46PO of the Australian Human Rights Commission Act 1986.

Legislation:  

Australian Human Rights Commission Act 1986, s.46PO

Federal Circuit Court of Australia Act 1999, s.79

Eastman v Shamrock Consultancy Pty Ltd [2018] FCCA 3436
Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 4) [2018] FCA 74

Applicant: LEE-ANNE EASTMAN

Respondent: SHAMROCK CONSULTANCY PTY LTD

File Number: SYG 2347 of 2018

Judgment of: Judge Cameron

Hearing date: On the papers

Date of Last Submission: 11 December 2018

Delivered at: Sydney

Delivered on: 25 January 2019

REPRESENTATION

Solicitors for the Applicant: Mr R. Aslanian of Connect Legal

Counsel for the Respondent: Mr B. Miles

Solicitors for the Respondent: Pendlebury Workplace Law

ORDERS

1. The costs of and incidental to the applicant’s application in a case filed on 22 August 2018 be the applicant’s costs in the cause.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2347 of 2018

LEE-ANNE EASTMAN

Applicant

And

SHAMROCK CONSULTANCY PTY LTD

Respondent

REASONS FOR JUDGMENT

1. On 29 November 2018 I granted the applicant leave to bring a proceeding under the Australian Human Rights Commission Act 1986 (“AHRC Act”) alleging disability discrimination and a failure to make reasonable adjustments: Eastman v Shamrock Consultancy Pty Ltd [2018] FCCA 3436. The applicant has now sought an order that the respondent pay her costs of that application for leave.

2. The applicant’s argument was set out in her submissions on costs dated 6 December 2018 and in a supporting affidavit sworn by her solicitor Richard Serop Aslanian on 5 December 2018.  The respondent filed their submissions in reply on 11 December 2018.  The parties have consented to the application for costs being decided without an oral hearing.

Applicant’s Submissions

1. The applicant argued that the orders she sought were of a final or determinative nature and not interim or interlocutory orders.  Moreover, she submitted that the interlocutory application had not sought an indulgence or the imposition of some order or direction on the respondent.

2. The applicant submitted that costs should follow the event noting that:

   a)the respondent could have taken a passive role;

   b)there is no apparent public interest element;

   c)both parties were represented;

   d)the respondent opposed the application for various reasons which the Court found unpersuasive;

   e)the respondent opposed a proposal by the applicant that the application be determined on the papers;

   f)the respondent’s opposition occasioned unnecessary delay and expense;

   g)the application which she sought to bring clearly had reasonable prospects of success; and

   h)a successful party should not lose the benefit of their victory.

Respondent’s Submissions

1. In response, the respondent argued that the judgment was not of a final and determinative nature because the application did not finally determine the rights of the parties. The respondent also submitted that it would be an error to fetter the broad discretion conferred by s.79 of the Federal Circuit Court of Australia Act 1999 by holding that a particular category of application before the Court necessarily entails a particular outcome on costs, citing Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 4) [2018] FCA 74.

2. The respondent noted that the Court’s leave was a necessary hurdle for the applicant to overcome and that it had not acted unreasonably in opposing the application as the applicant had no presumptive entitlement to leave and the case did not involve the application of well-settled principles.  The respondent submitted that it was not shown that it had been unjustified in opposing the application or that its opposition was so devoid of merit that its conduct was unreasonable.

3. The respondent also submitted that there was no reason for the matter to have been determined on the papers and that it had not been shown that the applicant’s costs had increased due to its opposition.

Consideration

1. The application which the applicant brought was not one which sought the indulgence of the Court but was a step which s.46PO(3A) of the AHRC Act required be taken before the action could proceed further. That being so, it was an essential element of the case which will now move forward. Being no more than a standard step in the litigation, it would seem that no costs order, other than that the costs be costs in the cause, would ordinarily be appropriate in circumstances where leave was granted. Other considerations would apply if the application for leave had failed because, unlike the result which the applicant achieved, that would amount, in substance, to a final order and under ordinary principles the respondent would have been entitled to its costs.

2. Despite the general appropriateness of ordering that costs be costs in the cause if leave under s.46PO(3A) of the AHRC Act is granted, the circumstances of a particular case may require a different outcome. In this proceeding, with all respect to the ingenuity of counsel, the respondent advanced ambitious arguments and I did not think that its written submissions needed, or were assisted by, oral exposition in court. Although it was not unreasonable of the respondent to have contested the application for leave, the application was made more expensive and time consuming than was necessary by reason of the respondent’s approach to it. The respondent should not be awarded its costs of the applicant’s leave application should it win this case.

3. In the circumstances I find that there should be an order that the costs of and incidental to the applicant’s application in a case filed on 22 August 2018 be the applicant’s costs in the cause.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 25 January 2019