Frith v The Exchange Hotel and Anor (No.2)

[2005] FMCA 1284

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FRITH v THE EXCHANGE HOTEL & ANOR (No.2) [2005] FMCA 1284

HUMAN RIGHTS – Costs.

Human Rights and Equal Opportunity Commission Act 1986
Sex Discrimination Act 1984
Federal Magistrates Court Act 1999, s.79
Federal Magistrates Court Rules 2001, Rule 21.15

Tate v Raffin [2000] FCA 1150
Creek v Cairns Post [2001] FCA 1150
Ball v Morgan [2001] FMCA 127
Cooke v Plauen Holdings [2001] FMCA 91
Tadawan v South Australia [2001] FMCA 25
Shiels v James [2000] FMCA 2

Applicant: KYLIE FRITH

First Named Respondent: GLEN STRAITS PTY LIMITED trading as THE EXCHANGE HOTEL

Second Named Respondent: MARTIN BRINDLEY

File No: BRG 16 of 2001

Delivered on: 7 September 2005

Delivered at: Brisbane

Hearing dates: 29 & 30 November 2001 and written submissions as to costs after judgment

Judgment of: Rimmer FM

REPRESENTATION

Counsel for the Applicant: Mr Reid

Solicitors for the Applicant: Poteri Woods

Counsel for the First named Respondent: Ms Callaghan

Solicitors for the First named Respondent: Hemming & Hart

Counsel for the Second named Respondent: As for first respondent

Solicitors for the Second named Respondent: As for first respondent

ORDERS

1. That Glen Straits Pty Ltd trading as the Exchange Hotel and Martin Brindley pay the costs of the applicant fixed in the sum of $15,769.28. within 28 days.

2. That the liability for payment of such costs of Glen Straits Pty Ltd trading as the Exchange Hotel and Martin Brindley pursuant to paragraph 1 above be joint and several.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BZ16 of 2001

KYLIE FRITH

Applicant

And

GLEN STRAITS PTY LIMITED trading as THE EXCHANGE HOTEL

First Named Respondent

And

MARTIN BRINDLEY

Second Named Respondent

REASONS FOR JUDGMENT

Costs arising from a decision dated 1 April 2005

1. This is an application for costs by the applicant to an original application filed in the Court on 17 May 2000 which was an application by Ms Frith against Glen Straits Pty Ltd and Mr Brindley under the Human Rights and Equal Opportunity Commission Act 1986 ("HREOCA"), alleging sexual harassment in employment under the terms of the Sex Discrimination Act 1984 ("SDA").

2. Such application was determined in Ms Frith’s favour when reasons for judgment were delivered and orders made on 1 April 2005.  The orders then made were:

   a)That Glen Straits Pty Ltd trading as the Exchange Hotel and Martin Brindley pay to the applicant the sum of $15,000.00 within 28 days.

   b)That both Glen Straits Pty Ltd trading as the Exchange Hotel and Martin Brindley provide a written apology to the applicant within 28 days, such apology to be in terms to be agreed between the parties or, if they cannot agree, to be approved by the Court in chambers.

   c)That the liability of Glen Straits Pty Ltd trading as the Exchange Hotel and Martin Brindley pursuant to paragraphs 1 and 2 above be joint and several.

3. The court has jurisdiction to make an award of costs under s79 of the Federal Magistrates Act 1999 (Cth).

4. It is submitted on behalf of the applicant that in cases of this kind where the applicant is successful that cost would normally follow the event: Tate v Raffin [2000] FCA 1150; Creek v Cairns Post [2001] FCA 1150; Ball v Morgan [2001] FMCA 127. It is further submitted that in cases where the applicant is successful, this court has been particularly astute to give effect to the principle that costs should be awarded so that the award of compensation is not eaten away by the costs of litigation: Cooke v Plauen Holdings [2001] FMCA 91 at para 44.

5. In Tadawan v South Australia [2001] FMCA 25, Raphael FM said at paras. 62-63:

   “The Court has accepted that these matters were normally considered to be “no costs” matters, as evidenced by the practice of the state tribunals and the fact that there was no power in HREOC to award costs. The Court has recognised that where proceedings are brought a successful party should not have the benefit of his or her victory lost in costs. The Court is also anxious not to discourage litigants from bringing claims which may well have merit because of the fear of an adverse costs order in the event that the applicant is unsuccessful. On the other hand, the Court can use its powers in relation to costs to discourage unmeritorious claims.”

6. I agree with the views expressed by Raphael FM in Shiels v James [2000] FMCA 2 at paragraph 80 concerning the general desirability of an award of costs in favour of a successful applicant in human rights proceedings, so as to avoid an award of damages being substantially if not totally diminished by the cost of litigation.

7. In this matter the applicant was wholly successful in her claim.  The court accepted each of her claims of sexual harassment and the evidence which she gave as to the events that transpired between she and Mr Brindley on the evening of Sunday 23 August 1998 and the early morning of Monday 24 August 1998.  Therefore I accept in applying the usual principles as to costs set out in these reasons that the applicant is entitled to an order for her costs.

8. I am satisfied that in this matter that the fixed event based costs regime applicable in this Court should apply in this case with the addition of counsel’s fees.  I accept that in a matter such as this that ran for two days of hearing time and involved important issues of credibility which required strenuous cross-examination that it was appropriate and reasonable for the applicant to secure the services of counsel as her advocate.  If that is the case, the court must so certify and I will do so.

9. Therefore the costs in accordance with Schedule 1 to the Court’s Rules are as set out in the written submissions of the applicant.  They amount to $10,695 and with Counsel’s fees and other proper disbursements total the sum of $15,796.28.

10. For the purposes of Rule 21.15 of the Federal Magistrates Court Rules I certify that it was reasonable for the applicant to employ an advocate to appear for her at the hearing on 29 November and 30 November 2001.

11. Accordingly and for these reasons, I propose to make the orders as set out at the commencement of these reasons.

I, Lynnette Chin, certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of Rimmer FM

Associate:  L. Chin

Date:  7 September 2005