Faruqi v Hanson (Costs) - [2024] FCA 1389

FEDERAL COURT OF AUSTRALIA
Faruqi v Hanson (Costs) [2024] FCA 1389

File number: NSD 372 of 2023

Judgment of: STEWART J

Date of judgment: 4 December 2024

Catchwords: COSTS – application for costs to be reduced by determination on a reduced scale – whether r 40.08 of the Federal Court Rules 2011 (Cth) applies – where the matter was in the nature of a test case for, and is important to, both parties – where a constitutional challenge was brought against the operative statutory provision – proceeding appropriately brought in this Court – application dismissed

Legislation:
Australian Human Rights Commission Act 1986 (Cth), s 46PO(4)

Racial Discrimination Act 1975 (Cth), s 18C

Federal Court Rules 1979 (Cth) (repealed), O 62 r 36A

Federal Court Rules 2011 (Cth), r 40.08

Cases cited:
Australasian Performing Right Association Ltd v Pashalidis [2000] FCA 1815

Faruqi v Hanson [2024] FCA 1264

Jones v Scully [2002] FCA 1080; 120 FCR 243

Loyola v Cryeng Pty Ltd (No 2) [2012] FCAFC 98

Shahid v Australasian College of Dermatologists (No 2) [2008] FCAFC 98

Toben v Jones [2003] FCAFC 137; 129 FCR 515

Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32; 268 FCR 401

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 16

Date of hearing: Determined on the papers

Date of last submissions: 28 November 2024

Counsel for the Applicant: Jessie Taylor

Solicitor for the Applicant: Marque Lawyers

Counsel for the Respondent: S Chrysanthou SC and T Smartt

Solicitor for the Respondent: Gillis Delaney Lawyers

ORDERS

NSD 372 of 2023

BETWEEN:
MEHREEN FARUQI

Applicant

AND:
PAULINE HANSON

Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

4 DECEMBER 2024

THE COURT ORDERS THAT:
1.The respondent’s application to vary the costs order made on 1 November 2024 be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
STEWART J:

On 1 November 2024, I made orders in the applicant’s favour upholding her claim against the respondent for offensive behaviour because of race, colour or national or ethnic origin under s 18C of the Racial Discrimination Act 1975 (Cth): Faruqi v Hanson [2024] FCA 1264. I made a declaration in relation to the unlawful offensive behaviour and granted a mandatory injunction requiring the respondent to delete the offending tweet.
I also ordered that the respondent pay the applicant’s costs, however, I reserved to the parties liberty to apply for a variation of the costs order. The respondent has availed herself of that liberty and applied for an order that the costs be determined on the lower scale of costs applicable as if the proceeding had been brought in Division 2 of the Federal Circuit and Family Court of Australia (FCFCOA) or, failing that, that she be liable for only 50% of the applicant’s costs. These reasons deal with the respondent’s application to vary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Faruqi v Hanson (Costs)

Details

AGLC: Faruqi v Hanson (Costs) [2024] FCA 1389
Case: [2024] FCA 1389
Decision Date: 4 December 2024

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Faruqi v Hanson revolved around an application by the respondent, Hanson, to reduce the costs previously awarded to the applicant, Faruqi. The dispute was primarily about the application of rule 40.08 of the Federal Court Rules 2011, which governs the costs in the Court. This case arose from a significant constitutional challenge brought against a statutory provision. The nature of the case was such that it served as a test case for both parties, thereby elevating its importance and complexity.

The court was required to determine whether rule 40.08 applied to the circumstances of this case, specifically whether the costs should be assessed on a reduced scale. The court considered the nature of the proceeding, which was appropriately brought in the Federal Court due to its constitutional implications. It was also necessary to evaluate whether the proceeding was in the nature of a test case, and if so, how that affected the assessment of costs.

The court concluded that the proceeding was appropriately brought in the Federal Court and was indeed in the nature of a test case. Given these factors, the court found that rule 40.08 did not apply to reduce the costs on a lower scale. The application by Hanson to vary the costs order was dismissed with costs awarded to Faruqi. The court's reasoning hinged on the importance and nature of the proceeding, which warranted a full assessment of costs rather than a reduced scale. The final orders reflect the dismissal of the application to vary the costs order and the awarding of costs to Faruqi.

Orders

Orders of the court

1. The respondent’s application to vary the costs order made on 1 November 2024 be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	NSD 372 of 2023
Judgment of:	STEWART J
Date of judgment:	4 December 2024
Catchwords:	COSTS – application for costs to be reduced by determination on a reduced scale – whether r 40.08 of the Federal Court Rules 2011 (Cth) applies – where the matter was in the nature of a test case for, and is important to, both parties – where a constitutional challenge was brought against the operative statutory provision – proceeding appropriately brought in this Court – application dismissed
Legislation:	Australian Human Rights Commission Act 1986 (Cth), s 46PO(4) Racial Discrimination Act 1975 (Cth), s 18C Federal Court Rules 1979 (Cth) (repealed), O 62 r 36A Federal Court Rules 2011 (Cth), r 40.08
Cases cited:	Australasian Performing Right Association Ltd v Pashalidis [2000] FCA 1815 Faruqi v Hanson [2024] FCA 1264 Jones v Scully [2002] FCA 1080; 120 FCR 243 Loyola v Cryeng Pty Ltd (No 2) [2012] FCAFC 98 Shahid v Australasian College of Dermatologists (No 2) [2008] FCAFC 98 Toben v Jones [2003] FCAFC 137; 129 FCR 515 Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32; 268 FCR 401
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	16
Date of hearing:	Determined on the papers
Date of last submissions:	28 November 2024
Counsel for the Applicant:	Jessie Taylor
Solicitor for the Applicant:	Marque Lawyers
Counsel for the Respondent:	S Chrysanthou SC and T Smartt
Solicitor for the Respondent:	Gillis Delaney Lawyers

ORDER MADE BY:	STEWART J
DATE OF ORDER:	4 DECEMBER 2024