Eisele v Commonwealth of Australia and Anor (No.2)
[2016] FCCA 3360
•23 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EISELE v COMMONWEALTH OF AUSTRALIA & ANOR (No.2) | [2016] FCCA 3360 |
| Catchwords: COSTS – Substantive application dismissed – discretion to award costs- Calderbank offer – Schedule 1 of the Rules – scale of costs- costs awarded. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth) Federal Circuit Court Rules(2001) (Cth) |
| Cases cited: Eisele v Minister for Immigration & Anor [2014] FCCA 677 Eisele v Commonwealth Of Australia & Anor [2016] FCCA 1155 |
| Applicant: | DR PATRICIA EISELE COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF IMMIGRATION & BORDER PROTECTION) |
| First Respondent: | COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF IMMIGRATION & BORDER PROTECTION) |
| Second Respondent: | MR DANIEL HUNTER DEPARTMENT OF IMMIGRATION & BORDER PROTECTION CASE OFFICER |
| File Number: | MLG 212 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 22 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Mr Goodwin |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Applicant pay the costs of the Respondents fixed in the sum of $32,957. There be a stay on such payment of twelve months.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 212 of 2015
| DR PATRICIA EISELE |
Applicant
And
| COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF IMMIGRATION & BORDER PROTECTION) |
First Respondent
| MR DANIEL HUNTER DEPARTMENT OF IMMIGRATION & BORDER PROTECTION CASE OFFICER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 13 May 2016 the Court dismissed the Applicant’s application in this proceeding. The Applicant’s substantive application had been brought under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (‘the AHRC Act’) alleging unlawful discrimination against the Respondents under the Sex Discrimination Act 1984 (Cth) (‘the SDA Act’) and the Disability Discrimination Act 1992 (Cth) (‘the DDA Act’).
The Applicant’s complaint had previously been terminated as misconceived by the Australian Human Rights Commission (‘AHRC’) under s.46PH(1)(c) of the AHRC Act on 9 December 2014.
Section 46PO of the AHRC Act invests the Court with jurisdiction to determine matters under the anti-discrimination Acts following termination of a complaint made to the AHRC. Section 46PO of the AHRC Act provides:-
“Application to court if complaint is terminated
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re-employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
(5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 , subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976 ).
(6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.
(7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).
(8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.”
Nothing in s.46PO or the AHRC Act as a whole provides that costs must not be awarded against a party in any court proceedings. The Court has a general discretion to award costs.
The Applicant alleged (additionally) in the substantive application that the Respondents discriminated against her in breach of the Privacy Act 1988 (Cth) and that the Respondents breached s.75(v) of the Australian Constitution 1901 (Cth) (‘the Constitution’) and various sections of the Migration Act (1958) (Cth) (‘the Migration Act’).
The Court ordered in the substantive proceedings as follows:-
“(1) The application is dismissed.
(2) The question of whether there be an order for costs, and if so, in what quantum, be adjourned to a date to be fixed.”
The Court refers to and relies upon, in these reasons, the published reasons of the Court delivered on 13 May 2016. The Court notes that the Applicant has lodged an appeal to the Federal Court of Australia against the judgment of the Court in matter VID595/2016 Dr Patricia Eisele v Commonwealth of Australia (Department of Immigration & Border Protection) & Anor.
This Application
The Respondents now seek an order pursuant to s.79 of the Federal Circuit Court Act 1999 (Cth) (‘the Act’) and r.21.02 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) that the Applicant pay their costs of the proceedings fixed in the amount of $66,498.95. The Respondents seek, in the alternative to a fixed amount of $66,498.95, that costs be ordered in accordance with Schedule 1 of the Rules which is an estimated amount of $32,957.11.
Section 79 of the Federal Circuit Court Act 1999 is as follows:-
“Costs
(1) This section does not apply to family law or child support proceedings or proceedings in relation to a matter arising under the Fair Work Act 2009 or section 14, 15 or 16 of the Public Interest Disclosure Act 2013 .
Note: See section 117 of the Family Law Act 1975 in relation to family law or child support proceedings. See section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act. See section 18 of the Public Interest Disclosure Act 2013 for proceedings in relation to matters arising under section 14, 15 or 16 of that Act.
(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.”
Rule 21.02 of the Federal Circuit Court Rules 2001 (Cth) is as follows:-
“Order for costs
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(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.”
In Lee v Procter and Gamble Australia Pty Ltd and Anor (No.2)[1], Judge Barnes relevantly said at [4]-[5]:-
“The Court’s power to award costs in proceedings of this nature arises by virtue of s.79 of the Federal Magistrates Act 1999 (Cth). Section 86 of the Act provides for the making of rules of court with respect to costs. Neither the Disability Discrimination Act 1992 (Cth) nor the Sex Discrimination Act 1984 (Cth) prohibits the making of a costs order in relation to matters which involve a complaint made in reliance on the provisions of those Acts. Nor is any such prohibition to be found in the AHRC Act under which these proceedings were brought. Subject to the Rules, an award of costs is in the discretion of the federal magistrate (see s.79(3) of the Federal Magistrates Act).
It is well-established that in the ordinary course, in the absence of any disentitling conduct on the part of the successful party, costs would follow the event (see Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 and Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229; [2001] FCA 1865 at [15]).”
[1] [2012] FMCA 1075.
It is also well established that the discretion to award costs conferred by s.79 of the Act is unfettered, provided that it is exercised judicially and in the context of the relevant court rules.[2]
[2] See Oshlac v Richmond River Council (1998) 193 CLR 73at [65]; Noble v Baldwin (No 2) [2011] FMCA 700 at [9]; and SZRTP v Minister for Immigration (No 2) [2013] FCCA 711 at [12].
The Respondents submitted that an application for costs was brought on the basis that:-
a)the Applicant unreasonably refused an offer made in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333 (‘Calderbank offer’) dated 23 April 2015; and
b)the amount of work required to be undertaken in this matter due to its legal and factual complexity, as well as the Applicant’s conduct, exceeded the amount of work contemplated in Schedule 1, Part 1 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).
Schedule 1, Part 1 of the Rules is relevantly as follows:-
| Costs for family law proceedings and general federal law proceedings | |||
| Item | Description | Amount for a general federal law proceeding (including GST) | |
| 1 | Initiating or opposing an application up to the completion of the first court date | Both: (a) $2,887; and (b) the daily hearing fee mentioned in item 13 that applies to the hearing | |
| 2 | Initiating or opposing an application which includes interim orders (other than procedural orders) up to the completion of the first court date | Both: (a) $3,613; and (b) the daily hearing fee mentioned in item 13 that applies to the hearing | |
| 3 | Interim or summary hearing--as a discrete event Note: This stage applies to an interim application or a summary proceeding of a type not otherwise addressed in this fee structure. It does not include the item 1 or 2 component. | Both: (a) $1,801; and (b) the daily hearing fee mentioned in item 13 that applies to the hearing | |
| 4 | Up to and including the conciliation conference | Not applicable | |
| 5 | Dispute resolution litigation intervention | $3,028 | |
| 6 | Preparation for final hearing--one day matter | $6,493 | |
| 7 | Preparation for final hearing--2 day matter | $9,756 | |
| 8 | Preparation for final hearing--each additional hearing day after the second hearing day | $2,052 | |
| 9 | Final hearing costs for attendance of solicitor at hearing to take judgment and explain orders | Both: (a) $294; and (b) the daily hearing fee mentioned in item 13 that applies to the hearing | |
| 10 | Application for family law location, recovery or enforcement of an order (other than an application for enforcement by a Registrar under item 11) | Not applicable | |
| 11 | Application for enforcement by a Registrar of: (a) a warrant under rule 25B.22; or (b) a third party debt notice under rule 25B.40 | Not applicable | |
| 12 | Advocacy loading | 50% of the daily hearing fee mentioned in item 13 that applies to the hearing | |
| 13 | Daily hearing fee | Either: (a) for a short mention--$294; or (b) for a half day hearing--$1,081; or (c) for a full day hearing--$2,162 | Either: (a) for a short mention--$294; or (b) for a half day hearing--$1,081; or (c) for a full day hearing--$2,162 |
| 14 | Disbursements--Court fees and other fees and payments to the extent that they have been reasonably incurred | The amount of the fees and payments | The amount of the fees and payments |
| 15 | Disbursements--photocopying for each page | $0.75 | $0.75 |
| 16 | Agents fees and travelling costs Note: For 2 or more hours travel. | ||
Whilst the amounts indicated above provide some guidance to the Court, they do not fetter the general exercise of the Court’s judicial discretion. The Court looks to the relevant facts and circumstances of the particular case before it in the exercise of that discretion, and sensibly so, given the vast array of matters before the Court and the differing complexities of the litigation and conduct of the litigants in each case.
In support of the application, the Respondents rely on the affidavits of Ms Ashlee Louise Briffa affirmed on 9 August 2016 and 19 August 2016 and relevant annexures.
The Respondents also rely on their submissions filed 9 August 2016, and those filed 26 October 2015 regarding the costs of the Applicant’s (unsuccessful) application for discovery.
The Applicant relies upon an affidavit sworn by her 18 August 2016 and on submissions filed by her on 18 August 2016.
Consideration
On 23 April 2015, the Australian Government Solicitor (AGS) sent to the Applicant by registered post a letter marked 'without prejudice save as to costs' (the Calderbank offer). Amongst other things the letter stated (with emphasis in original):-
“Your complaint to the Australian Human Rights Commission (AHRC), which led to the proceeding, was terminated by the President of the AHRC as 'misconceived'.
For the reasons set out in the respondents' Response dated 2 April 2015 the respondents consider that the prospects of success of your claims against them under the Sex Discrimination Act 1984 and Disability Discrimination Act 1992 are very poor.
Further, in the very unlikely event that the proceeding is successful, the Court would not have the power under s 46P0(4) of the Australian Human Rights Commission Act 1986 to order the Minister for Immigration and Border Protection (the Minister) to make 'a more favourable decision' in relation to your visa status as you seek in Part A of the Amended Application. The Minister's power to grant visas arises from the Migration Act 1958 (the Act) and to get a visa an applicant must satisfy the criteria prescribed by the Act and the Migration Regulations 1994. If you think that you meet the criteria for a particular visa, it is open to you to apply for a visa at any stage. However, this proceeding will not lead to 'a more favourable' visa outcome whether you are successful or not.
As you are aware, the respondents have sought an order that you pay their legal costs if you are unsuccessful in this proceeding (see paragraph 3.2 of the Further Orders Sought in the Response).
The respondents would like to give you an opportunity to discontinue the proceeding at this early stage before further substantial legal costs are incurred by them. If you do so by 8 May 2015, the respondents undertake not to seek a costs order against you from the Court. In other words, you will not be required to pay for any of the respondents' legal costs and disbursements so far incurred (close to $20,000) as a result of the proceeding.
However, if you continue with the proceeding and are unsuccessful, please note that the respondents (in accordance with the principles expressed in Calderbank v Calderbank [1975] 3 All ER 333) will show this letter to the Court and seek an order that you pay:
a. their legal costs of this proceeding incurred to date: and
b. their legal costs of this proceeding incurred after the date of this letter on an indemnity basis, which will amount to significantly more than $20,000 incurred by the respondents so far.”
The Applicant did not respond to the Calderbank offer.
It is well-established that a Calderbank offer will be a relevant consideration in determining issues as to costs: see Henderson v Amadio Pty Ltd [1996] FCA 1341 at [51]. Justice Kenny relevantly noted in Fyna Foods Australia Pty Ltd (ACN 004 981 328) v Cobannah Holdings Pty Ltd (ACN 009 310 810) (No 2) [2004] FCA 1212 at [6] that:-
“The common law principles concerning Calderbank offers are designed to encourage parties to give careful consideration to reasonable offers of compromise and to encourage such offers of compromise to be made”.
The ‘central question’ in cases where a Calderbank offer is relied upon to support an application for indemnity costs is whether the rejection of the offer was ‘unreasonable in the circumstances’: see Huntly at [78] citing Hazeldene's Chicken Farm Ply Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 at [23].
On 4 September 2015, the Applicant filed an application seeking discovery of 11 categories of documents. She also filed a further affidavit (comprising 45 pages). Amongst other things, the affidavit annexed excerpts of transcripts in two proceedings before the Magistrates' Court of Victoria.
On 7 October 2015, AGS emailed the Applicant and attached a letter seeking that she produce complete copies of the transcripts of the Magistrates' Court of Victoria proceedings referred to in paragraph 23 above, under rule 14.10(1) of the Rules. The Applicant did not respond.
On 8 October 2015, the Respondents filed written submissions opposing the discovery application.
The discovery application was listed for hearing on 9 October 2015. Mr Lukic appeared on behalf of the Respondents, however the Court made orders adjourning the hearing until 12 October 2015. Following the hearing on 9 October 2015, Mr Lukic had a 2 hour without prejudice meeting with the Applicant.
On 12 October 2015, the Court heard the resumed discovery application and dismissed it in its entirety. The Court also made orders that the parties file written submissions addressing the issue of costs of the discovery application. Mr Lukic appeared for the Respondents at that hearing.
On 26 October 2015, the Respondents filed written submissions about the costs of the discovery application.
On 9 November 2015, the Applicant filed written submissions about the costs of the discovery application. In those submissions the Applicant made allegations that Mr Lukic had breached without prejudice privilege during the hearing on 12 October 2015. The Applicant had, sometime prior to filing her submissions on 9 November 2015, written to AGS on a without prejudice basis regarding the allegations. On 29 October 2015 and in response, Mr Paul Barker, a Senior Executive Lawyer at AGS, after investigating the allegations, including by speaking to Mr Lukic and reviewing the transcript of the hearing on 12 October 2015, wrote to the Applicant informing her of AGS's view that the allegations were without basis and should be withdrawn.
After the Applicant made the allegations in her submissions of 9 November 2015, Mr Barker again wrote to the Applicant on 26 November 2015 reiterating AGS's view that the allegations were baseless and were, in any event, not relevant to the costs of the discovery application.
On 10 December 2016, the Applicant filed a subpoena requiring Mr Colby Hickey to attend Court and give evidence at the final hearing in this proceeding.
On 11 February 2016, the Applicant filed a subpoena requiring Ms Jane Hickey to attend Court and give evidence and produce documents at the final hearing of this proceeding.
On 2 March 2016, the Applicant filed a further amended application and supporting affidavit. The further amended application contained 9 detailed complaints and referred to various sections of the SDA, DOA, the Constitution, Migration Act 1958 and Privacy Act 1988.
On 8 March 2016, the Applicant filed a subpoena requiring Mr Noor Dean to attend Court and give evidence at the final hearing.
On 11 March 2016, the Applicant filed written arguments comprising 11 pages. The Respondents also filed written arguments that day (also comprising 11 pages) including responding to the new complaints and further evidence filed on behalf of the Applicant.
On 16 March 2016, the Respondents filed a court book in consultation with the Applicant.
On 23 and 24 March 2016, the Court heard the substantive proceeding. On the first day of the hearing the Court set aside the subpoenas issued to Mr and Ms Hickey.
On 13 May 2016, the Court dismissed the substantive application.
On 2 June 2016, AGS emailed a letter to the Applicant marked 'without prejudice save as to costs' enclosing consent orders offering to settle the issue of costs.
The total actual costs of the Respondents are claimed to be $83,187.80 (excluding GST). This comprises of:-
a)$71,510.45 in AGS professional fees, and
b)$11,677.35 in disbursements (including counsel fees of $6,663.64 and witness expenses of $3,253.93 associated with the Second Respondent's travel from San Francisco to give evidence at hearing).
The professional fees claimed for exceed the amount provided for in the Court’s Schedule scale of costs.
The Respondents informed the Applicant that, at the time of the Calderbank offer, their costs were already at about $20,000. This amount was considerably in excess of the Schedule 1 scale amount for the work done at that time. The Applicant could not reasonably respond to this stated figure which was subsequently referred to in correspondence between the parties in a lesser amount. In particular, because the Applicant was a litigant in person.
There is however no disentitling conduct on the part of the Respondents which would warrant a departure from the ordinary course, which is that costs follow the event in these proceedings.
The Applicant was wholly unsuccessful in her case. Considerable work was required to be done by the Respondents to meet the voluminous and often irrelevant material filed by the Applicant.
The Court shall order an amount of $32,957 to be paid by the Applicant to the Respondents. This is a significant sum for the Applicant in her present financial circumstances and the Court shall grant a stay on payment of such sum for a twelve month period.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 23 December 2016
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