Gama v Qantas Airways Pty Ltd
[2010] FMCA 529
•13 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAMA v QANTAS AIRWAYS PTY LTD | [2010] FMCA 529 |
| PRACTICE & PROCEDURE – Appointment of litigation guardian. |
| Racial Discrimination Act 1975, s.9 Disability Discrimination Act 1992, s.15(2)(d) |
| Applicant: | WILLIAM CHARLES GAMA |
| First Respondent: | QANTAS AIRWAYS PTY LTD |
| File Number: | SYG 1488 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 July 2010 |
| Date of Last Submission: | 13 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid NSW |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
Imelda Margaret Dodds, in her capacity as the NSW Trustee and Guardian, is appointed as the litigation guardian of William Gama in these proceedings.
The respondent to pay the applicant’s costs in the amount of $42,997.96
AND IT IS NOTED the parties intend that these orders are to be read in conjunction with costs order in the matter of Qantas Airways Limited v William Gama, Federal Court of Australia proceedings NSW2539/2006. The parties have come to an arrangement which includes offsetting the costs owed by each party to the other party. The arrangement involves the following agreed amounts and calculations:
(a)The parties agree that the amount owed to the applicant (hereafter “William Gama”) by the respondent (hereafter “Qantas”) as a result of costs orders in matter SYG1488/2005 are $42,997.96.
(b)The parties agree that the costs owed to William Gama by Qantas in matter NSD2539/2006 are $19,468.40.
(c)The parties agree that the costs owed to Qantas by William Gama in matter NSD2539/2006 are $37,120.00.
(d)Legal Aid NSW will pay $15,000.00 to Qantas in full satisfaction of William Gama’s section 47 Legal Aid Commission Act 1979 (NSW) indemnity.
(e)Qantas accepts the payment of the indemnity is accounted for by way of the $15,000 being deducted from the amount of $37,120.00.
(f)The difference of $37,120.00 - $15,000.00 equals $22,120.00. William Gama will pay $22,120.00 to Qantas by way of Qantas offsetting the amount against the costs owed by Qantas to William Gama in the Federal Magistrates Court proceedings SYG1488/2005.
(g)Qantas agrees to pay William Gama the amount of $20,877.96 in satisfaction of the costs orders in matter SYG1488/2005 such amount being the difference between the full amount owed to William Gama for SYG1488/2005 and the amount owed by William Gama for costs in matter NSD2539/2006.
(h)As a result of the arrangements listed at (a) – (g) above, the parties agree that the final amounts payable by Qantas are:
(i)$4,468.40 to the Legal Aid NSW Trust Account; and
(ii)$20,877.96 to William Gama C/- NSW Trustee and Guardian.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1488 of 2005
| WILLIAM CHARLES GAMA |
Applicant
And
| QANTAS AIRWAYS PTY LTD |
First Respondent
REASONS FOR JUDGMENT
On 8 December 2006, after a lengthy trial, I awarded William Charles Gama $71,692.70 as damages, including interest, for breach of s.9 of the Racial Discrimination Act 1975 (“RDA”) and s.15(2)(d) of the Disability Discrimination Act 1992 (“DDA”). I reserved the costs. Later, I made costs orders.
Mr Gama, whose mental health was one of the matters in issue in the case and which, to my mind, was in a delicate state, even at the time of the hearings, did not accept the court’s verdict upon his claims and instituted appeals. Those appeals were dismissed. As a result of Mr Gama’s actions in continuing the legal proceedings a large number of costs orders have been made and much of the benefit of Mr Gama’s original judgment has been eroded. Apparently, in about 2009 matters had come to such a pass that Mr Gama was in danger of being made bankrupt and losing his sole asset, his house at Milton, in which he lives with his wife. He was lucky, however. Ms Naismith, a solicitor with the Legal Aid Commission in New South Wales, took a personal interest in his case and has been assisting Mr Gama as best she can for some years.
Eventually matters got to the stage where she believed that Mr Gama could no longer handle his own financial affairs and she made an application to the Guardianship Tribunal for a financial manager to be appointed. On 12 October 2009 the Tribunal heard the application and appointed the New South Wales Trustee as his financial manager. I have before me the reasoned decision of the Guardianship Tribunal dated 12 October 2009.
Regrettably, although Mr Gama was subject to financial management, there had been no appointment of a litigation guardian for him which meant that he was able to involve himself in continuing legal process and in particular, in the complex process of working out the effect of the various costs orders between himself and Qantas Airways Limited. The more Mr Gama involved himself in these matters the more the costs rose, both for himself and for Qantas. Ms Naismith was able to effect an agreement with Qantas about the costs but Mr Gama will not accept it so she has applied to this court by way an Application in a Case dated 6 July 2010 to have Imelda Margaret Dodds, in her capacity as acting chief executive officer of the New South Wales Trustee and Guardian, to be appointed litigation guardian of Mr Gama. The application itself is made, purportedly, in the name of Mr Gama. It is supported by an affidavit of Mr Franklin, an employee of the New South Wales Trustee and Guardian. Ms Naismith appears on their behalf and Ms Evans appears for the respondent (Qantas) and consents to the order. If the order is made the court will also be able to make orders in accordance with some consensual minutes that have been provided to the court. I have read these. They appear to deal with all the questions of costs as between Qantas and Mr Gama. I have no doubt that coming to such an agreement will be of benefit to Mr Gama and his family because the costs of dragging this matter out further will be crippling.
On 12 July 2010 the court received a facsimile from Mr Gama, although I believe it was written by his wife. She tells that Mr Gama is presently very ill and asks us to hold up the proceedings because Mr Gama wishes to be present. She says that Mr Gama’s psychiatrist can fully vouch that Mr Gama is not insane and does not suffer from dementia. Mr Gama is suffering from a major depression. She makes certain allegations against Ms Naismith and against Qantas. She is concerned with the amount of costs that Qantas has asked for in connection with the unsuccessful appeal. I am, of course, sympathetic to Mr Gama but even the letter from his wife indicates that he is suffering from a major psychological problem and it is clear that things have not improved since the financial management order was made. Ms Gama gives no indication in the letter as to exactly when he could appear. He tells that his doctor is overseas for three weeks and will be operating on him in August and he will then be hospitalised for at least six weeks. The evidence that was before the Guardianship Tribunal indicated that Mr Gama had very serious difficulties in preparing himself for any court hearing.
In the circumstances I do not propose to wait for any further time so that Mr Gama can appear. I think it is essential that the guardian be appointed as soon as possible and the matter be concluded. Mr Gama may never thank the court for this but hopefully his wife and children will. Having heard the parties and delivered this judgment I propose to make the orders signed by me and placed with the papers.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 21 July 2010
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