Eisele v Commonwealth of Australia and Anor (No.2)

The Federal Circuit Court of Australia, at Melbourne, heard an application by Dr. Patricia Eisele against the Commonwealth of Australia and a case officer, Mr. Daniel Hunter. Dr. Eisele’s substantive application, brought under s.46PO of the *Australian Human Rights Commission Act 1986* (Cth), alleged unlawful discrimination by the respondents under the *Sex Discrimination Act 1984* (Cth) and the *Disability Discrimination Act 1992* (Cth). This application followed the termination of her complaint by the Australian Human Rights Commission as misconceived. Dr. Eisele also raised additional claims concerning breaches of the *Privacy Act 1988* (Cth), s.75(v) of the *Australian Constitution 1901* (Cth), and various sections of the *Migration Act 1958* (Cth).

The primary legal issue before the Court was the determination of costs following the dismissal of Dr. Eisele’s substantive application. The respondents sought an order that the applicant pay their costs, either fixed at $66,498.95 or, in the alternative, calculated according to Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) at an estimated amount of $32,957.11. The Court’s jurisdiction to award costs in such proceedings, and the discretion it possessed in making such awards, were central to this determination.

The Court reasoned that s.79 of the *Federal Circuit Court Act 1999* (Cth) grants the Court jurisdiction to award costs in all proceedings, subject to certain exceptions not applicable here, and that the award of costs is generally in the discretion of the Court or a Judge. Rule 21.02 of the Federal Circuit Court Rules 2001 (Cth) outlines the procedure for applications for costs. The Court noted that nothing in the *Australian Human Rights Commission Act 1986* (Cth) or s.46PO of that Act precluded an award of costs against a party.

The Court ordered that the Applicant pay the costs of the Respondents fixed in the sum of $32,957.11, with a stay on such payment for twelve months.