Elliott v Nanda and Commonwealth

Case [2001] FCA 550

FEDERAL COURT OF AUSTRALIA

Elliott v Nanda & Commonwealth [2001] FCA 550

DAMAGES – Joint and several liability – whether the Sex Discrimination Act 1984 (Cth) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth) authorise an award of compensation on the basis of joint and several liability of several respondents –contribution between respondents.

PRACTICE AND PROCEDURE – meaning of “proceedings pending” – whether judgment has been given when reasons have been published but no orders made.

Sex Discrimination Act 1984 (Cth) s 83A
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO
Federal Court Rules O 23 r11(4) & O 29 r5

Ah Toy v Registrar of Companies (1985) 10 FCR 280 cited
Claderbank v Calderbank [1976] Fam 93 cited
Melhero Pty Ltd v Club X (No.2) (1997) 37 IPR 203 cited
Smallacombe v Lockyer Investments Co Pty Ltd (1993) 42 FCR 97 cited

LEANNE ELLIOTT v PREM NANDA AND COMMONWEALTH OF AUSTRALIA
N 720 OF 1999

LEANNE ELLIOTT v COMMONWEALTH OF AUSTRALIAN
N478 OF 2000

MOORE J
18 MAY 2001
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N720 OF 1999

BETWEEN:

LEANNE ELLIOTT
APPLICANT

AND:

PREM NANDA
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

N 478 OF 2000

BETWEEN:

LEANNE ELLIOTT
APPLICANT

AND:

COMMONWEALTH OF AUSTRALIA
RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

18 MAY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS AND DECLARES THAT:

1.Matters N 720 of 1999 and N 478 of 2000 be consolidated on and from the date of these orders with Dr Prem Nanda as the first respondent and the Commonwealth of Australia as the second respondent.

2.Dr Prem Nanda and the Commonwealth of Australia pay the applicant $15,100 within 7 days.

3.The liability of Dr Prem Nanda and the Commonwealth under order 2 is joint and several.

4.In the event that Dr Prem Nanda satisfies order 2, the Commonwealth of Australia pay Dr Nanda the sum of $5,000 within 24 hours of the satisfaction of the order.

5.In the event that the Commonwealth of Australia satisfies order 2, Dr Prem Nanda pay the Commonwealth of Australia $10,100 within 24 hours of the satisfaction of the order.

6.Dr Prem Nanda pay the applicant the sum of $5,000 within 7 days.

7.Dr Prem Nanda pay the applicant’s costs in N 720 of 1999 as agreed or taxed and on an indemnity basis on and from 16 June 2000 as agreed or taxed.

8.The Commonwealth of Australia pay the applicant’s costs in N 478 of 2000 as agreed or taxed.

9.There be no reduction in the costs to be paid to the applicant by operation of O 62 r36A.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N720 OF 1999

BETWEEN:

LEANNE ELLIOTT
APPLICANT

AND:

PREM NANDA
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N…

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AGLC
Elliott v Nanda and Commonwealth [2001] FCA 550
Case
[2001] FCA 550
Decision Date

CaseChat Overview and Summary

In the matter of Elliott v Nanda and Commonwealth, the Federal Court of Australia addressed the issue of whether costs should be awarded to the applicant against the Commonwealth. The applicant, having already instituted proceedings against the respondent, sought compensation for discrimination and sexual harassment. The Commonwealth argued that no costs should be awarded as the applicant had already gained some benefit from the proceedings against the respondent. The Court needed to decide whether the applicant should be compensated twice for the same conduct by both parties and whether it was appropriate to consolidate the proceedings at that stage.

The Court found that it had the power and the desirability to consolidate the proceedings against both the respondent and the Commonwealth. It highlighted that proceedings were considered pending until they were finally concluded, allowing for the consolidation of cases. The Court exercised its broad discretionary powers under the Sex Discrimination Act and the Human Rights Commission Act to make orders as it deemed fit. The Court considered it unnecessary to address principles of equitable contribution or the potential application of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) concerning the liability of the respondent and the Commonwealth as between themselves.

The Court ruled that it was appropriate to consolidate the proceedings to ensure that the applicant was fully compensated by both parties while also reflecting the fact that the immediate cause of the discrimination was the respondent. This consolidation aimed to avoid double compensation for the same conduct and to provide a comprehensive resolution of the rights of all parties involved.

In conclusion, the Court ordered the consolidation of the proceedings against both the respondent and the Commonwealth to ensure the applicant was compensated fully and fairly.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MOORE J
The Commonwealth submitted that no costs should be awarded against it in these proceedings as the applicant gained no benefit from the application. It was submitted that the object of anti-discrimination proceedings is to recover compensation for loss or damage suffered and that, in this case, pursuit of that objective did not require the applicant to institute proceedings against the Commonwealth when proceedings against the respondent were already on foot.Conclusion-Compensation An unusual feature of this matter is that an aspect of the conduct of the respondent causing loss and damage to the applicant sounding in compensation is deemed by s 105 of the S D Act to also be the conduct of the Commonwealth. That is, they both unlawfully discriminated against the applicant. Obviously the applicant should not be compensated twice. However, in my opinion, it is appropriate that I endeavour to follow a course that ensures the applicant is compensated fully by both the respondent and the Commonwealth but also reflects the fact that, as between the respondent and the Commonwealth, the immediate cause of the discrimination was the respondent and that his conduct also constituted sexual harassment. I canvassed with the parties whether or not an order should be made, even at this late stage, consolidating the proceedings so that the rights of the parties could be settled by one set of orders. The Commonwealth submitted this was not possible as the power to order consolidation under O 29 r 5 only arose when proceedings were pending. In this case, it was submitted judgment had been given and there were no proceedings pending. However, what is a "judgment" is a settled question of law (at least in cases where proceedings are brought seeking compensation or damages and reasons have been published but no orders made): see Ah Toy v Registrar of Companies (1985) 10 FCR 280. Moreover, proceedings are pending until they are finally concluded: see Melhero Pty Ltd v Club X (No 2) (1997) 37 IPR 203 at 205. I am satisfied that I have power to order consolidation of the proceedings against the respondent and the proceedings against the Commonwealth. I am also satisfied that it is desirable to do so for the reasons given in the preceding paragraph. Both s 83A of the S D Act and s 46 PO of the HREOC Act confer a broad discretionary power on the Court to make such orders as it thinks fit. The power is expressed in sufficiently broad terms, in my opinion, to authorise not only an order that a respondent to proceedings pay compensation to an applicant, but also to make orders as between respondents that might, in other circumstances, be viewed as requiring contribution or indemnity. Accordingly it is unnecessary to deal with principles concerning equitable contribution apparently relied on by the applicant or to determine whether the provisions of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) might authorise orders concerning the liability of the respondent and the Commonwealth as between themselves.

Ratio Decidendi

Legal Principle Established

Established by: MOORE J

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