Flew v Mirvac Parking Pty Ltd - [2006] FMCA 1818

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLEW v MIRVAC PARKING PTY LTD

[2006] FMCA 1818

HUMAN RIGHTS – Application for order specifying maximum costs under Rule 21.03 of the Federal Magistrates Court Rules – relevant factors.

Human Rights and Equal Opportunity Commission Act 1986
Disability Discrimination Act 1992
Federal Magistrates Act 1999
Federal Court of Australia Act 1976
Federal Magistrates Court Rules
Federal Court Rules

Ball v Morgan [2001] FMCA 127
Fetherson v Peninsula Health (No 2) (2004) 137 FCR 262
Gluyas v Commonwealth of Australia (No 2) [2004] FMCA 359
Hanisch v Strive Pty Ltd (1997) 74 FCR 384
Hollingdale v North Coast Area Health Service No 2 [2006] FMCA 585
Hughes v Western Australian Cricket Association (Inc) [1986] FCA 2491
IW v City of Perth (1997) 191 CLR 1
Muller v Human Rights and Equal Opportunity Commission & Anor [1997] FCA 634
Oshlack v Richmond River Shire Council (1994) 82 LGERA 236
Purvis v New South Wales Department of Education and Training (2003) 202 ALR 133
Ritter v Godfrey [1920] 2 KB 47
Sacks v Permanent Trustee Australia Limited (1993) 118 ALR 265
Woodland v Permanent Trustee Company Limited & Ors (1995) 58 FCR 139
Yates Property Corporate Pty Limited v Boland (No 2) (1997) 147 ALR 685

Applicant:

RICHARD FLEW

Respondent:

MIRVAC PARKING PTY LTD

File Number:

SYG2072 of 2006

Judgment of:

Barnes FM

Hearing date:

24 November 2006

Delivered at:

Sydney

Delivered on:

18 December 2006

REPRESENTATION

Counsel for the Applicant:

Ms E. Raper

Solicitors for the Applicant:

NSW Disability Discrimination Legal Service

Counsel for the Respondent:

Ms D. Ronalds SC

Solicitors for the Respondent:

Harmers Workplace Lawyers

ORDERS

That the application for an order specifying the maximum costs that may be recovered as between the applicant and the respondent be dismissed.
That the respondent’s costs of and incidental to the application be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2072 of 2006

RICHARD FLEW

Applicant

And

MIRVAC PARKING PTY LTD

Respondent

REASONS FOR JUDGMENT

These proceedings

The applicant commenced proceedings by application filed on 27 July 2006 pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) alleging unlawful discrimination against him by the respondent on the ground of disability in breach of ss.5, 6 and 15 of the Disability Discrimination Act 1992 (Cth) (the DDA), harassment in breach of s.35 and victimisation in breach of s.42.
In the application of 27 July 2006 the applicant also sought an order pursuant to Rule 21.03 of the Federal Magistrates Court Rules specifying the sum of $5,000 as the maximum costs including, but not limited to, the costs of experts and legal representatives, that may be recovered on a party and party basis as between the applicant and respondent in this matter. This judgment relates to the application for a Rule 21.03 order.
In relation to this issue the applicant relies on affidavits sworn by him and filed on 17 November 2006 and 23 November 2006. The respondent tendered a letter…

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.

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Details

Case: [2006] FMCA 1818
Decision Date: 18 December 2006

CaseChat Overview and Summary

Flew v Mirvac Parking Pty Ltd is a case in which the applicant sought to determine the maximum costs recoverable from the respondent in a proceeding related to parking infringements. The dispute arose in the Federal Circuit Court of Australia. The primary issue before the Court was whether the applicant had a right to an order specifying the maximum costs that may be recovered in the proceedings.

The Court considered the statutory framework and relevant case law to determine whether such an order was appropriate. The Court found that the statutory provisions and the case law did not support the applicant's claim. The Court emphasised that the issue of costs was not to be determined at the interlocutory stage of proceedings and that the matter of costs was to be determined at the conclusion of the proceedings. The Court held that the applicant's application was premature and without merit.

As a result, the Court dismissed the applicant's application for an order specifying the maximum costs recoverable. The Court further ordered that the respondent's costs of and incidental to the application be reserved for determination at the conclusion of the proceedings. This decision clarifies the appropriate timing for determining costs in proceedings related to parking infringements and reinforces the principle that costs are not to be determined at the interlocutory stage.

Orders

Orders of the court

That the application for an order specifying the maximum costs that may be recovered as between the applicant and the respondent be dismissed.

That the respondent’s costs of and incidental to the application be reserved.

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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