Fox v Johnston
[2007] FMCA 2154
•2 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FOX v JOHNSTON | [2007] FMCA 2154 |
| COSTS – Unsuccessful applicant seeks orders for costs against successful respondent. |
| Anglo-Cyprian Trade Agencies Limited v Paphos Wine Industries Limited (1951) 1LR 873 |
| Applicant: | LEE ANN FOX |
| Respondent: | SHARON ELIZABETH JOHNSTON (T/A SKIMMO'S CORNER STORE) |
| File number: | BRG 465 of 2007 |
| Judgment of: | Jarrett FM |
| Hearing date: | By written submission |
| Date of last submission: | 26 October 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 2 November 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Anderson |
| Solicitors for the Applicant: | McKenzie Cox |
| Solicitor for the Respondent: | Ms McGregor |
| Solicitors for the Respondent: | Legal Aid Commission of NSW |
ORDERS
That the applicant pay the respondent's costs of and incidental to the application fixed in the sum of ELEVEN THOUSAND, FOUR HUNDRED and NINETY FIVE DOLLARS and NINTEY FIVE CENTS ($11,495.95).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 465 of 2007
| LEE ANN FOX |
Applicant
And
| SHARON ELIZABETH JOHNSTON (T/A SKIMMO'S CORNER STORE) |
Respondent
REASONS FOR JUDGMENT
This is an application for costs that arises from a decision that I gave on 10 October, 2007. As a result of that determination - described in one of the sets of submissions delivered as an interlocutory determination - the principal proceeding was dismissed by agreement. The principal proceeding was originally an application seeking compensation and other relief under the HREOC Act alleging discrimination by the respondent against the applicant on the grounds of sex, pregnancy, and/or disability.
The critical issue in the case was whether the applicant had been dismissed from her employment by the respondent. As a matter of fact, I determined that she had not, but rather that the applicant had voluntarily resigned from her employment. Consequent upon the dismissal, the respondent seeks an order for costs.
The legal position with respect to an order for costs is set out, in my view, correctly in the submissions filed by the applicant on 25 October, 2007.
Ordinarily, costs follow the event and a successful litigant receives his or her costs in the absence of special circumstances justifying some other order. There can be conduct on the part of a successful litigant which disentitles that litigant to an award of costs. The type of conduct that might disentitle a successful party to an order for costs is summarised, as the applicant points out, in Anglo-Cyprian Trade Agencies Limited v Paphos Wine Industries Limited (1951) 1LR 873.
In my view, there is no disentitling conduct on the part of the respondent in this case. It is said that the way in which the respondent conducted this litigation should disentitle her to an order for costs. Specifically, it is said that there was non-compliance with a number of directions made by the Court and there was something of a misrepresentation, perhaps, made by the respondent's solicitors to the Court during one of the directions hearings about the nature and extent of the witnesses to be called by the respondent.
As matters transpired, there were some 15 affidavits filed by different witnesses to be relied upon at trial, but ultimately only six of those witnesses gave evidence.
In my view, there was nothing untoward in the respondent preparing her case as she saw fit. There were a number of affidavits that were delivered that were not ultimately relied upon, but it seems to me that there may be any number of circumstances that might occur between the preparation of a matter for trial and the actual hearing, which means that some or other of the witnesses might not ultimately be relied upon.
It was also noted that large portions of the evidence relied upon by the respondent in some of the affidavits were struck out as inadmissible, but the same criticism, of course, can be made of the applicant's material.
It is suggested that there is some public interest in this case, it being a case involving the HREOC Act, which would mean that it would be inappropriate to make an order for costs. In my view, that is not so. It is certainly the case that in some human rights applications there is a sufficiently significant public interest factor that means that an order for costs, irrespective of the outcome of the application, is inappropriate. This is not one of those cases.
This case turned on its own facts. It was determined according to the credibility of the applicant and the respondent. The applicant was a person employed by the respondent; she had fallen pregnant, and because of complications with her pregnancy she decided to no longer continue with her employment.
Even if the respondent had terminated the applicant's employment, as alleged, it is not entirely clear that the applicant would, in any event, have succeeded on her claim. If she had, I would anticipate that the applicant would indeed, herself, be asking for an order for costs.
In my view, there is no disentitling conduct. There is nothing in the nature of the case which would suggest that the ordinary rule with respect to costs ought not be followed. Costs ought to follow the event, and in my view, it is neither here nor there to know, as seems to be the case, that the applicant is legally-aided, and that Legal Aid will be meeting any costs order at least up to the sum of $15,000.
In terms of the quantum costs, I have determined that those costs ought to be fixed in the sum of $11,495.95, which is the sum of the items claimed under Sch 1 to the Federal Magistrates Court Rules 2001 and the disbursements incurred by the respondent as set out in the affidavit of Ms Anderson filed on 17 October, 2007.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Jarrett FM
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